Evidence in a DUI-Drugs Offense in Loudoun County
Virginia has a very broad DUI-drug law. Section 18.2-266 applies to “any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature” that “impairs his ability to drive or operate any motor vehicle, engine or train safely.” Any drug could mean caffeine or other food additives, or Sudafed or another over-the-counter medicine. Impairment means any loss of function.
The broad law is a trap, at least in many cases. Prosecutors often press DUI-drug charges that the evidence cannot support. If a Virginia DUI defense lawyer successfully erodes the evidence, a successful resolution is possible. This resolution could be a complete dismissal of charges, a not-guilty verdict at trial, or a plea to a lesser-included offense, like reckless driving.
Field Sobriety Tests
Blood tests can detect the drugs, and amount of drugs, in a person’s body. But blood tests require search warrants, so officers only administer them in rare cases. Furthermore, there’s no approved Breathalyzer test for marijuana and other drugs, at least not yet.
So, in most cases, the state must rely on circumstantial evidence, like the field sobriety tests. The FSTs have some well-chronicled flaws.
- Horizontal Gaze Nystagmus: The follow-my-finger DUI eye test accurately identifies nystagmus, a condition sometimes known as lazy eye. However, the HGN test doesn’t prove that drug use caused nystagmus. A childhood brain injury, noy substance impairment, is, by far, the leading cause of nystagmus.
- One-Leg Stand: Like HGN, the failure to stand on one leg could be the result of fatigue, mobility impairment, or many other things other than drug use. Furthermore, officers often cite insignificant technicalities, like barely-noticeable swaying, to claim the defendant “failed” the test.
- Walk-and-Turn: Like the OLS, the WAT is a divided attention test which measures two kinds of impairment, physical (inability to walk a straight line) and mental (inability to follow directions). Physically, most people cannot walk heel to toe unless they’re wearing athletic shoes. Mentally, if the WAT is the final test administered, many defendants are mentally fatigued.
If the defendant refuses to perform the FSTs, prosecutors must rely on even weaker circumstantial evidence, like an open pill bottle in the car, a current prescription for pain pills, odor of marijuana, erratic driving, or glazed eyes.
Circumstantial evidence is subject to interpretation. So, a Leesburg criminal defense lawyer need only put a positive spin on this evidence that resonates with jurors.
DRE Testimony
Prosecutors often use drug recognition experts to bolster the weak circumstantial evidence in a DUI-drug case. DRE testimony has two basic flaws.
First, DREs usually aren’t “experts.” They’re police officers who underwent some police-sponsored training in this area. Additionally, they usually obtain certification by identifying drivers who are under the influence of drugs.
Second, DRE testimony is based on a self-fulfilling prophecy. Police officers summon a DRE to confirm the fact that the defendant is under the influence of drugs. When you’re looking for something, you typically find it.
Frequently, to counter DRE testimony, a Leesburg criminal defense lawyer partners with a real expert who casts doubt on the DRE’s conclusions. That’s all an attorney must do (create a reasonable doubt as to the evidence).
Work With a Diligent Loudoun County Lawyer
There’s a big difference between an arrest and a conviction in criminal law. For a confidential consultation with an experienced criminal defense attorney in Leesburg, contact Simms Showers, LLP, Attorneys at Law. Convenient payment plans are available.
Source:
law.lis.virginia.gov/vacode/title18.2/chapter7/section18.2-266/
