A new Oklahoma drugged-driving law set to take effect Oct. 1, 2013 may encourage prosecution of drivers who are not intoxicated. The new metabolite DUI law makes it a crime for a driver to operate a vehicle with any amount of certain drugs – or metabolites of those drugs – in the driver’s bodily fluids.
The problem with the new law lies in the narrow selection of intoxicating substances criminalized, and a bizarre zero-tolerance standard for metabolic residues that has more to do with politics than to to with science or public safety. Marijuana is among the drugs prohibited at any level in a drivers bodily fluids. Yet, unlike stronger and more dangerous drugs that flush from the system in hours or days, metabolites from marijuana can be found in a person’s body days or even weeks after the person consumes enough marijuana to be intoxicated.
The new law does not target cocaine intoxicated drivers, drivers cranked up on methamphetamine or those who may be addicted to pain pills. With a club-fisted amendment to the state’s drunken driving law, the legislature primarily sought to consolidate the state’s stand against decriminalization of marijuana. It’s an attempt to hijack the state’s DUI law to criminalize “internal possession” of marijuana.
To target marijuana users who may have last consumed the herb days earlier, perhaps in another state where it is legal for medical or recreational use, the legislator relied on the state’s list of “Schedule 1” drugs. As on the federal drug schedules, marijuana is classified in Oklahoma alongside heroin as a Schedule 1 drug – drugs for which there is ostensibly no legitimate medical use and for there is a high potential for abuse. Schedule II drugs are those with potential for abuse but which there is a current medical use.
Oklahoma’s drug schedules are similar to the federal schedules, but may be changed by the legislature on recommendation of the Director of the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control. For purposes of prosecuting drug offenses, Schedule 1 and Schedule 2 drugs are listed together but marijuana – although it’s listed as a Schedule 1 drug – is classified with drugs on Schedules 3, 4 and 5.
By this statutory sleight of hand, possession of Schedule 2 cocaine or methamphetamine nets the same penalties as possession of Schedule 1 heroin or LSD while possession of marijuana is prosecuted similarly to illegal possession of prescription drugs like diazepam (Valium). For most purposes, marijuana is listed among the most dangerous drugs but possession is prosecuted as if it were a typical prescription drug.
When writing the zero-tolerance metabolite DUI law, legislators tossed aside the odd conflict it had created between the criminal code where possession penalties are set out – with marijuana near the bottom — and the health-and-safety code where the dangerous drug schedules are listed – with marijuana on top. This time the legislature – without explicitly saying so – primarily targeted marijuana users.
To criminalize drivers with even small trace amounts of marijuana metabolites that can be found weeks after marijuana has been consumed, the legislature set aside the exemption in the criminal code that classified marijuana along with Schedule 3, 4 and 5 drugs. They also separated Schedule 1 drugs from Schedule 2 drugs, leaving cocaine, methamphetamine, morphine, codeine and oxycodone out of the new drugged driving law.
The ability of drug tests to find traces of marijuana use long after any intoxicating effect has warn off is not lost on legislators who are eager to hijack the state’s DUI law to criminalize “internal possession” of marijuana. They’ve co-opted a law ostensibly passed to prevent driving while intoxicated to prosecute marijuana users for driving long after intoxication has subsided. It will be interesting to see if courts allow the legislature to use the motor vehicle code to extend the criminal code in circumstances that have nothing to do with safe operation of motor vehicles.
Free Consultation: Tulsa DUI Attorney
Until October, police will still have to rely on their training, judgment and common sense to determine of a driver is impaired. And training, judgment or common sense can fail. If you’ve been charged with DUI or DWI – driving under the influence or driving while intoxicated – it’s important to contact a skilled Tulsa DUI attorney. A conviction can have a lasting impact. You can lose driving privileges, you may get a criminal record – with the potential for enhanced penalties on a second conviction – and you may have a more difficult time finding work.
For a free no-cost consultation with a Tulsa DUI attorney, call the Wirth Law Office immediately at (918) 879-1681 (or toll free at (888) Wirth-Law) or submit the question form at the top right of this page.