Northern Utah Has a Growing Number of Drivers Arrested for Drug-Related DUIs

Interviewer: Our main topic today is the different factors attributed to DUI arrests.  Now your website also mentioned metabolites.  What do you mean by that?

Matthew Nebeker: There are a number of people getting arrested for a drug-related DUI.  In my mind and in the law in Utah, there are two areas of drugs that they’re looking at.  The first area is street drugs or drugs of abuse.  Those are your drugs like marijuana, cocaine, methamphetamine, morphine.

Then there’s the prescription drugs that people are lawfully prescribed.  They would include Xanax, Soma, Valium, Unisom, Oxycodone and Ambien.  When people have those in their system, their driving can be impaired.

When a Driver Is Stopped for a Traffic Infraction and the Officer Suspects Impairment, He Will Administer a Field Sobriety Test, Which Generally, Most Drivers Perform in a Non-Satisfactory Manner

Oftentimes they’ll get stopped for a traffic infraction, speeding or weaving in and out of their lanes.  The officers will run to the field sobriety tests and many times the driver will perform poorly.  To be honest, most of the time people do poorly on the field sobriety test.

BAC of 0.08 or Higher: Incapable of Safely Operating a Vehicle While Being Under the Influence of Drugs or Alcohol

Then the officers will administer a blood draw and send that to the lab.  We’ll get a lab report back.  That lab report will say what was in their blood.  Was it methamphetamine or was it marijuana or was it a prescription drug?  If the person has these drugs in their system and they are reckless, careless in their driving, the statute calls it incapable of safely operating their vehicle.  There are two components, a drug in their system and they are incapable of safely operating their vehicle.

They can be charged and prosecuted for driving under the influence.  That’s the same portion of the statute is for alcohol.  The statute is 0.08 or higher, or incapable of safely operating the vehicle while being under the influence of drugs or alcohol.

Drug Metabolites: Driving with a Measurable Amount of a Controlled Substance in Your System

That is for a driver that is impaired, but then they have a different statute that says if you have these drug metabolites in your system, then you can receive the charge for driving with a measurable amount of a controlled substance in your system.  What that statute doesn’t really take into consideration is the impaired part, like the DUI statute.

Drivers in Utah Will Be Charged If the Metabolite of Drug Is Found to Be in Their Systems

Here, you could have smoked marijuana a week ago and it’s still in your system.  The officer pulls you over and he thinks you’re under the influence of something, request your blood, and the marijuana comes back in your system, that’s a violation of the law.  It’s having that metabolite.

A metabolite is just a drug that’s being broken down by the body, chemically being broken down.  All these drugs, when they’re breaking down, they form different chemical compounds and that’s what is carried to the blood system.  It’s a DUI metabolite.  It’s treated just about the same.  They can still suspend your license on it. The test just looks at just what is in your system, not whether you are impaired or not.

A lot of people travel through Utah, from two of our neighboring states.  In Colorado, they legalized the recreational use of marijuana.  In Nevada, you can get marijuana through a prescription to treat certain conditions.  People will be driving through the state from Nevada to Colorado.  A trooper will pull them over for speeding or something.  While they’re going through their wallet, getting their license and insurance information, the trooper maybe will see the medical marijuana card.

The Controversy Is Now How Long Is an Individual Impaired by the Drug When the Metabolite Is in Their System?

He’ll ask, “When’s the last time you smoked marijuana?”  People will think it’s no big deal to say, “I smoked it a few days ago.”  That right there is enough for the trooper in Utah to arrest them, takes them to jail and take their driver’s license and put them through the same process.

Marijuana usage is legal in the state that they’re from.  So that’s when you have to look a little bit further into the statute and show that it’s a defense, it’s an affirmative defense, they call it, if the person ingested this involuntarily, or if they were prescribed the marijuana by a doctor.

The Defense Attorney May Incorporate a Legal Prescription Defense for Out of State Residents Arrested in Utah for Marijuana Impairment

I handled one of those cases recently.  A gentleman lived in California.  He had a medical marijuana card.  He was up here.  His company had transported him up here for work, a temporary change of duty station.  He got pulled over and that very thing happened.  The officers observed, while he was giving them his California driver’s license, the medical marijuana card.

They asked my client when the last time he smoked.  My client said, “A couple of days ago.”  He wasn’t under the influence of it.  That was enough for him to be arrested and taken to jail.  We had to go through the entire process.  We have to request the driver’s license hearing.

In that case, I was able to, as a defense, show under our statute that he was lawfully prescribed this in his own state.  It was prescribed by a physician.  Reluctantly the prosecutor dismissed that one, but not all prosecutors are easy to get along with as this particular prosecutor.  That’s how it happens.  Basically that’s what it is under the statute.  If you just have it in your system and you’re not lawfully prescribed it, you are in violation of the law.

There Is No Legal Prescription Defense for Drugs Such as Methamphetamine

If you think about that with other drugs, like methamphetamine, you’re not going to have a doctor prescribing you methamphetamine.  There’s a tougher defense for the client.  The metabolite is present, but you’re not under the influence of the drug. It’s in your system and that’s a violation of our law here.

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