- October 27, 2016
- Posted by: Keith Graves
- Category: DUI
The information below is not legal advice. It is merely meant as a guide to spark discussion among officers. As always, before enforcing driving addicted laws, speak with your DA prior to embarking on new enforcement efforts and ensure that you comply with your state law, current case decisions, department policy and the wishes of your DA.
Driving Addicted: Danger on the Highway
A hard charging officer was driving down the road the other day and sees a car with a known drug addict inside. The driver, whom the officer knows from several prior arrests, has a rap sheet riddled with heroin arrests. This proactive cop decides to make a stop on the car for a traffic violation.
During the investigation, he arrests the driver for driving under the influence of drugs, drug possession for the heroin found in his pocket and for possession of drug paraphernalia. Is that the end of the stop? Or is there anything else the officer can do?
How About Driving Addicted?
One of the least used sections in DUI enforcement are statutes prohibiting drug addicts from driving a motor vehicle (driving addicted). Five States (California, Colorado, Idaho, Kansas, and West Virginia) make it illegal for any drug addict or habitual user of drugs to drive addicted in their State. Unfortunately, this article can only help officers in those five states. For simplicity, I will use California’s 23152(c) statute as an example throughout this article (see footnote 2 below).
Most arrests that fall under the driving addicted statute usually involved multiple charges. I have used this section to make a number of arrests of drug addicts driving. It is a section that should be used more often and will increase roadway safety. Almost always, the arrest of for driving addicted is made in conjunction with a DUID arrest or some other drug related charge.
In California’s law, a case from 1965 lists important items for enforcement. As an example, the court noted, “Because a drug addict is subject to the physical infirmities caused by withdrawal, he is always a potential danger on the highway and it is proper to forbid him to drive.” The court set down a standard that stated the officer does not need to show impairment at the time of the stop. As an example, an officer stopped a city worker in a city vehicle to arrest him for an outstanding felony warrant. An officer from a neighboring agency told the investigating officer that the defendant admitted to being addicted to cocaine for years just two days prior. During the investigation, the investigating officer learned that the defendant was indeed addicted to cocaine. The defendant wasn’t high at the time of the stop, but was still arrested for driving addicted. Here, the investigating officer took a consensual urine test from the defendant, which came back positive for cocaine.
The court, in O’Neil (3), also stated that it was not necessary to show the defendant was in a state of withdrawal. The court also noted, “An addict means someone who uses a drug that produces a physical dependence so as to suffer withdrawal symptom
s if deprived of it.” So what can those withdrawal symptoms include?
- Heroin and other opiates: restlessness, aches and pains in the bones, diarrhea, vomiting and severe discomfort.
- Methamphetamine/Cocaine/CNS Stimulants: agitation, depression, intense craving for the drug, extreme fatigue, anxiety, angry outbursts,lack of motivation
- Cannabis: Being irritable, feeling anxious or worried, feeling depressed, being restless, having trouble sleeping at night and feeling tired during the day, having low appetite or losing weight, stomach pain, sweatiness, shakiness, fever, chills, headache
- CNS Depressants: insomnia, weakness and nausea. For continual and high-dose users, agitation, high body temperature, delirium, hallucinations and convulsions can occur. Unlike withdrawal from most drugs, withdrawal from depressants can be life-threatening.
So, how do you prove that someone is addicted to drugs and suffers withdrawal symptoms? you can do the following to help your case:
- Ask them if they are an addict. You’d be surprised, a number of them actually tell the truth.
- compile a list of prior arrests (not necessarily convictions). You may see that the defendant has drug arrests every year for the last 10 years. Addiction can be defined as continued use despite adverse consequences. Going to jail repeatedly is an adverse consequence.
- What has happened in their lives? Have they lost their kids in a custody battle because of drug use? Have they been divorced or lost a job becasue of drug use?
- What physical signs do you see? A crack addict may have burn marks on their lips, tongue and fingers. That is a sign of continued use. What about track marks? Is it a meth addict that has lost all of their teeth? Take photos and document what you see.
- Ask them what symptoms they feel when they stop using? Do they compare to the list you see above?
Document all of this in your report. As always, this information is meant to spark conversation with your officers and the DA. Many DA’s often don’t like filing charges on cases like this. Not many people enforce it because of ignorance. Now you are informed. Take this, along with the jury instructions, and show them what you have in mind.
1) Walsh, J. M. (2009). A state-by-state analysis of laws dealing with driving under the
influence of drugs (No. HS-811 236).
2) It is unlawful for a person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.
3) People v. O’Neil, 62 Cal. 2d 748, 401 P.2d 928, 44 Cal. Rptr. 320 (1965).