With the legalization of recreational use of marijuana in Rhode Island, many have wondered what impact it may have on cases involving driving under the influence (DUI) of drugs, specifically driving under the influence of marijuana. Our Rhode Island criminal defense attorneys have studied the new marijuana laws and have analyzed its repercussions on DUI’s. Read more below to get our take!
What problem does marijuana legalization present when it comes to DUI?
Because the recreational use of marijuana is now legal, many motorists will likely consume marijuana at some point before getting behind on the wheel. Unlike breathalyzers, which measure the quantity of alcohol in one’s system and therefore their level of impairment, the chemical tests currently used by police officers to detect drugs say nothing about actual impairment at the time of testing. Blood and saliva tests merely detect that there is marijuana in one’s body. But these tests cannot detect how much or when it was consumed, making it impossible to determine if that motorist is “under the influence” to a degree that renders them incapable of safely operating a motor vehicle.”
What is a DRE and how does it impact DUI of marijuana or drugs in Rhode Island?
DRE stands for drug recognition expert. A DRE is simply a police officer who has specific training to detect drugs in one’s system. As mentioned above, because there is no single test that can reliably confirm if someone is under the influence of a drug, courts have relied on DRE’s to help determine a person’s level of intoxication due to drugs.
What does a DRE do in a DUI drug case?
A police officer who is certified as a DRE will conduct a series of standardized and systematic tests (similar to field sobriety tests in a DUI with alcohol) during the DUI investigation. These tests will help determine:
1) whether or not the suspect is impaired
2) whether the impairment relates to drugs
3) what category of drugs are the likely cause of the impairment.
What tests are uses by DREs in a DUI drug investigation?
There is a twelve (12) step process used by DREs in DUI drug investigations.
- First, like most traditional DUI cases, is a breath test. This would rule out impairment from alcohol.
- The DRE would then interview the arresting officer (assuming he is not also the arresting officer) to get details on the motorist’s behavior, appearance, and driving.
- Next, the DRE examines the motorist to determine if they are suffering from any other injury or condition unrelated to drugs. This exam should include observations of the person’s face, speech, breath, and coordination. The DRE would then preform the horizontal gaze nystagmus test (HGN). Finally, they would take the person’s pulse for the first time.
- The DRE continues with an eye examination checking for vertical gaze nystagmus (VGN) and a lack of convergence.
- Divided Attention Psychophysical Tests are conducted next. These include the Modified Romberg Balance, the Walk and Turn, the One Leg Stand, and the Finger to Nose test.
- The person’s pulse is taken for a second time, along with other vitals like blood pressure and temperature.
- The subject is then taken for a “dark room examination” where their pupil sizes are measured and observed under three different lighting conditions.
- In the next phase of the testing, DRE observe a person’s muscle tone to determine if it is loose and flaccid or rigid.
- Then, DRE would take the suspect’s pulse for a third time, while checking for injection sites.
- At the end of the process, the DRE asks the suspect a series of questions regarding drug use.
- The DRE then forms an opinion on impairment and will determine which category of drugs is causing the impairment.
- Finally, the DRE performs additional toxicology/chemical tests to support their opinion.
You can refuse DRE testing!
Like any field sobriety test in Rhode Island, you can refuse to submit to a DRE investigation. There is no penalty for failing to undergo these tests. You are not required to give the police “more evidence” against you. Remember, you always have a right to remain silent and the right to an independent medical examination.
Are DRE findings and opinions admissible in Rhode Island?
Although the Rhode Island Supreme Court has not weighed in on this issue, a recent Superior Court decision, State v. Howard, has discussed this issue. In Howard, the Court held that the “Drug Recognition Evaluator officer’s findings and opinions that defendant was under the influence and impaired to operate a motor vehicle were not sufficiently accurate, reliable, and trustworthy and were at least partially based upon findings that required an application of scientific knowledge and medical judgment beyond that received in advanced drug recognition training.” No. K1-2017-0564A, 2020 R.I. Super. LEXIS 14, at *1 (Super. Ct. Feb. 17, 2020).
Motions to Suppress and Motions to Dismissed in Marijuana DUI cases in Rhode Island
With the recent legalization of marijuana and the Howard decision in Rhode Island, criminal defense attorneys now have multiple avenues to attack marijuana DUI drug cases. Filing motions to suppress and/or dismiss could help defendants achieve dismissals and acquittals in their DUI cases.
Hire an Experienced RI DUI drug lawyer today!
If you have been charged with DUI of drugs in Rhode Island, contact our experienced DUI lawyers today. Our aggressive attorneys will analyze your case and make motions to keep out the DRE evidence in your case, especially if your case now involves legalized marijuana. Do not hesitate, get our lawyers on your side today.
Contact us online or call now for a free consultation, 401-245-5100. We are available 24/7 to you!
Criminal defense attorney Allison C. (Belknap) Abilheira serves clients with dedication and skill in Warren, Providence, and the surrounding areas in Rhode Island. Attorney Abilheira practices law in Rhode Island, the United States District Court for the District of Rhode Island, the United States Court of Appeals for the First Circuit, and in Massachusetts.
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