Many people assume it’s perfectly alright to contact the police to report a suspected drunk driver on the road. The person doing the reporting is a Good Samaritan, right? Well, that’s not how it worked out for a driver in Canada this past New Year’s Eve. The “Good Samaritan” reported another driver to the Royal Canadian Mounted Police. He even went so far as to pull over to the side of the road to stop the other motorist from driving away.

When the police got there, they noticed the smell of alcohol on the reporting driver’s breath. They administered a breath test, which showed that the man was legally impaired. The motorist accused of drunk driving also took a breath test, resulting in a BAC of 0.00 percent!

Law enforcement has a number of ways to detect whether a driver may be drunk: breath tests, blood tests, field sobriety tests, the smell of alcohol, open containers, etc. Now, however, researchers in Australia are attempting to develop a camera that, when pointed at a person’s face, can determine whether a person is drunk. Apparently, the camera reacts to facial expressions, drooping eyelids, glassy eyes, and other facial features, and concludes – one way or another – whether a person has had too many drinks. Another goal is to have the camera installed in the vehicle’s computer; if it detects certain facial characteristics, the car will not start. This new technology, while interesting, has some drawbacks. The latest tests claim an accuracy level of only 75%, which is problematic since a conviction for DUI requires proof beyond a reasonable doubt. Some should feel especially sorry for the Steve Buscemi-looking folks among us, who will probably never be able to drive again.

With recreational marijuana becoming legal in more and more states, marijuana has emerged as a major issue on the roadways. The City of Long Beach, California has announced that it is trying to do something about it. The city’s mayor has announced that they have received a grant of $285,000 through the NHTSA to “educate” citizens about the dangers of marijuana-impaired driving. This will include workshops for those in high school and college, as well as other measures to promote awareness of the issue. At the same time, the City announced that it was going to lower the cannabis tax rate to “generate more revenue.” We assume that this means promoting cannabis sales. We note, in passing, that the city collected more revenue last year from the sale of cannabis than from the sale of gasoline.

Breath tests and blood tests are commonly used in cases of suspected driving under the influence (DUI). Indeed, under Arizona law, a breath reading of 0.08 blood alcohol content (BAC) is, by statute, proof of drunk driving DUI. This is true even if there is no other evidence of impairment from drugs or alcohol. Some time ago, a man was stopped by police in Loveland, Colorado when he was driving home from a dinner party. He was arrested and charged with driving under the influence. While the police officer said he smelled alcohol in the car, a breath test came back with 0.00 BAC. A blood test also came back negative for all substances that were tested. The man sued the town and was awarded $400,000 for wrongful arrest. It is alleged that the arrest was the result of a competition among police departments in the area for which one had the most DUI arrests.

A former Fox News correspondent has been arrested and charged with driving under the influence of alcohol. The arrest occurred in West Palm Beach, Florida. Interestingly, the police found that the man’s blood alcohol limit was under the legal limit of 0.08. According to the police, however, they have additional evidence that the man was under the influence of alcohol. The evidence, police say, consists of slurred speech, the odor of alcohol, and the allegation that the man failed several parts of a field sobriety test. His attorney expressed the belief that the charges will eventually be dismissed.

The former Attorney General of Pennsylvania was charged last year with drunk driving. The case presents a good example of how, particularly in the absence of a breath test to determine a person’s blood alcohol level, these charges can be successfully challenged. In this case, there was video footage showing the woman consuming alcohol at a restaurant prior to the arrest, as well as officer testimony that she had bloodshot eyes, was slurring her words and failed a field sobriety test. In response, the defense presented testimony of other officers who said they smelled no alcohol on the woman’s breath, as well as the fact that the field sobriety test was administered on an icy road in high winds. The prosecution had not met its burden of proof beyond a reasonable doubt, and in a bench trial, the judge issued a judgment of not guilty.

A bill put forth in the Virginia legislature that would have set a legal limit for THC for drivers, died in the state’s Judiciary Committee earlier this month. THC, or tetrahydrocannabinol, is the chemical responsible for the bulk of marijuana’s psychological effects. The testing, had the measure passed, would have been accomplished by means of a saliva sample. Critics attacked the bill, which was aimed at drugged driving, by saying that the proposed limit was too low and would therefore lead to the arrest of people who had consumed marijuana days earlier and were not actually impaired. Others expressed concern over the accuracy of the saliva tests themselves. In the meantime, with more and more states legalizing the use of marijuana, the debate surrounding drugged driving and the quest for reliable and accurate testing continues not only in Virginia, but throughout the country.

When a police officer stops a motorist for allegedly driving under the influence of alcohol (DUI or DWI, depending upon the state in which you are driving), the protocol is fairly simple. Alcohol has a recognizable smell, the signs of inebriation may be fairly obvious, and testing for blood alcohol content (BAC) is pretty simple. While field sobriety tests are also often used, the process has a measurable standard through which it can be determined if your BAC is 0.08 or above – the nationwide level for driving under the influence (or driving while intoxicated). Of course, you could be impaired and have a lower BAC reading, but that would be the exception rather than the rule. When it comes to drugs, however, the standards are much less clear. The only sure test of the presence of a drug in a person’s system is a blood test, and without it, the only potential “evidence” is the testimony of police officers who may or may not be drug recognition experts (DRE). In this article, the author describes a program in Colorado to train officers to obtain certifications as DRE’s, including recognizing impairment from multiple drugs. In that regard, in a recent year 45% of the drivers charged with DUI in Colorado tested positive for multiple substances.

As marijuana – recreational and/or medical – becomes legal in more and more states, law enforcement grapples with the issue of how to determine whether a person is “impaired.” There is no “marijuana breathalyzer, yet the evidence needed in order to obtain a conviction must show, beyond a reasonable doubt, that the driver was intoxicated (or under the influence) within the meaning of the laws of the state where it occurred. Because of the lack of a scientific calculation, police usually rely on field sobriety tests. While those tests may be helpful, the results are only as officer as the person conducting them. And the fact is that is that only about one in every 100 police officers in the United States is  certified as a Drug Recognition Expert.

You may wonder what happens when an off-duty police officer is charged with DUI (drunk or drugged driving) in Arizona. In addition to the possibility of jail, community service, fines and other penalties that come along with any DUI conviction, cops face an additional hurdle in some cases. Specifically, a conviction for extreme DUI (where the defendant’s blood alcohol level is 0.15 or greater) or any other case involving aggravating circumstances (for example, a crash) will usually lead to a hearing before the Arizona Peace Officer Standards and Training Board. The Board decides if additional sanctions are warranted. And those sanctions could include anything from no action, to suspending or revoking the officer’s certification to work as a police officer in the State of Arizona. A problem with the system is that in some cases, the Board is not even aware of the DUI charge, which leads to a lack of consistency in which cases come before the Board. A recent request that the policy be changed to refer to the Board all DUI charges against off-duty officers – whether or not the case was dropped, and whether or not there were aggravating circumstances – was rejected by the Board late last year.

The use of body cameras by police have been a boon to many who are called on to defend against charges of criminal behavior. A recent case in Dallas is a good example. The wife of the Texas GOP chair was arrested for driving while intoxicated with a child passenger, a felony in Texas. And if you read the incident report, you might not consider the arrest particularly noteworthy. Reviewing the body cam footage, on the other hand, reveals that the arrest was questionable, at best. Most importantly, the footage shows that the woman was administered a breathalyzer, which did not show her over the legal limit for alcohol. The breathalyzer result was not mentioned in the incident report, and the footage contradicts the officer’s report on the field sobriety test results. A former Commissioner of the New York Police Department, when interviewed about the case, called the arrest an abuse of power. All charges against the woman have been dropped.

Many, perhaps most people, assume that the legalization of marijuana for recreational use will cause an increase to some extent in the incidence of driving under the influence of marijuana. Some past studies have shown (or at least suggested) that an increased number of individuals arrested for DUI have THC – the main psychoactive compound in marijuana – in their systems, in states in which marijuana use has been legalized. The more recent study analyzed data from trauma centers in 6 states, 2 of which had legalized marijuana use, over a period of 12 years. When looking at the data from motor vehicle crash patients who tested positive for marijuana, the researchers found the following:

• All states, whether marijuana was legal or not, showed an increase in positive marijuana tests over the course of the study.

• The largest increase among the target states was in Texas (15.3%) where marijuana use was illegal.

• The three states showing the lowest percentage of positive marijuana tests included Oregon and California, the only states in the study where marijuana was legal.

The study presents a major challenge to those who have claimed that marijuana DUIs will increase with the legalization of pot.