Oklahoma’s new metabolite DUI law sets the strictest standard possible for evidence of forbidden drugs potentially found in drivers’ blood. The standard is so strict that, technically speaking, everyone who gets behind the wheel is guilty of violating the law. Those who are in pain, even more so.
Sound unbelievable? Here’s how it works. Instead of setting particular thresholds of specific metabolites that are very strong indicators of illegal drugs use, the legislature banned any metabolite of any Schedule I drug. Those are drugs currently presumed to have no legitimate medical use.
No problem, you might think. Just stay off of Schedule I drugs. Don’t use heroin. Don’t smoke pot.
There is a problem though. Metabolites of Schedule 1 drugs include some chemicals that are found in everybody’s body. In fact, a widely cited metabolite of heroin is naturally present in humans. It’s called 6-Acetylmorphine or 6-AM. The presence of significant amounts of “6-AM” in the blood is such a strong indicator of heroin use it is used as a basis for drug testing. yet small amounts are normally found in the body.
Drug tests that rely on 6-AM look for significant amounts of the heroin metabolite – around 10 nanograms per milliliter in some labs. Yet trace amounts are present in everyone’s brain. Hence, every driver who gets behind the wheel is technically guilty of metabolite-DUI under the Oklahoma DUI-D law that took effect Oct. 1, 2013.
Morphine is an Endorphin
You might consider that a far fetched argument, but let’s break heroin down another step. Heroin breaks down into 6-acetelymorphine, then into morphine. Scientists have long recognized that the body naturally produces morphine as an “endorphin” – usually in small amounts and especially in reaction to pain. Endorphins are also produced during strenuous exercise, in a phenomenon known as the “runner’s high.”
Morphine can be produced naturally as an endorphin, but it is also a metabolite of heroin. Oklahoma law makes it illegal to drive with any metabolites of heroin in the bloodstream. The law does not distinguish how the metabolites were produced, set any minimum threshold or say which metabolites are presumed to be indicators of illegal drug use.
Even bakery products containing poppy seed can produce trace amounts of morphine in urine samples. Metabolites of these natural substances have similar or identical chemistry to some of the now-banned Schedule 1 metabolites identified in Oklahoma’s zero-tolerance metabolite DUI laws.
Then there is the matter of prescription drugs. Doctors and dentists routinely prescribe hydrocodone for pain. Hydrocodone breaks down into a metabolite called hydromorphone. Heroin breaks down into morphine, which in turn breaks down into hydromorphone. So prescription hydrocodone produces some of the same metabolites as those associated with Schedule I drugs.
Anyone taking hydrocodone would have some chemicals in their blood that could also be metabolites of heroin. And Oklahoma’s DUI law says a prescription is no defense to a DUI charge.
Lawmakers might need to do a better job of specifying which metabolites they’re trying to ban in drivers’ blood and in what quantities if they want their laws to withstand legal scrutiny.
The Right to Remain Silent
It’s reasonable to anticipate that the new metabolite DUI-D law will be used primarily to target drivers with a history of marijuana use. However, until the state adopts rules for testing only those metabolites of Schedule 1 drugs that are very strong indicators of recent drug use, even prosecution of marijuana users may depend on the ability of police and prosecutors to cajole or intimidate suspects into confessions and guilty pleas.
If you’re charged with driving while intoxicated, you have a right to remain silent and a right to an attorney. Police might not let you contact your attorney before they draw blood. Police might even obtain a warrant and forcibly collect blood from you.
Before you say anything to police about use of any illegal drug, you’ll do well to talk to a Tulsa criminal defense attorney about what the state must do to prove a case against you. Otherwise, their case may be no more than smoke and mirrors.
Free Consultation: Tulsa Metabolite DUI Attorney
It’s important to get legal advice as soon as possible, before you make statements that could be used against you, while your recollection of events is fresh, and before the state’s legal machinery gains momentum. For a free consultation with a Tulsa DUI attorney, contact Wirth Law Office at (918) 879-1681 (or toll free at (888) Wirth-Law) or submit the question form at the top right of this page.