Pennsylvania is currently experiencing a widespread opioid drug abuse epidemic in the major cities and surrounding suburban communities. As a consequence, there has been a sharp increase in the number of drugged driving arrests on Pennsylvania roadways. According to the American Automobile Association, approximately half of the DUI arrests in Pennsylvania involved either drugs alone or drugs combined with alcohol. As a result, contacting an experienced PA drugged driving lawyer is crucial to give you the best chance to avoid jail and avoid a license suspension.

Adverse Consequences of a Drugged Driving Conviction

The consequences of a conviction for drugged driving are severe and can include mandatory jail time, significant fines and court costs, loss of driving privileges and a permanent criminal record. It is important to have a knowledgeable Bucks County DUI defense attorney on your side if you are charged with drugged driving.

I have over a decade of experience providing skilled and aggressive representation to individuals facing charges for driving for under the influence of drugs in Bucks County, Montgomery County and the surrounding counties. Contact me at (215) 752-5282 for a free initial consultation or fill out the confidential contact form for an immediate response. Appointments are available after business hours and on weekends.

Pennsylvania’s Drugged Driving Law

Pennsylvania’s drugged driving laws are found under 75 Pa. C.S.A. § 3802 (d). The statute states, in part, that an individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:

There is in the individual’s blood any amount of:
- A Schedule I controlled substance; or
- A Schedule II or Schedule III controlled substance defined under the Pennsylvania Drug Act, which has not been medically prescribed for the individual; or
- A metabolite of a Schedule I controlled substance or a metabolite of a Schedule II or Schedule III controlled substance as defined under the Pennsylvania Drug Act, which has not been medically prescribed for the individual; or

The individual is under the influence of a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle; or
The individual is under the combined influence of alcohol and a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle; or
The individual is under the influence of a solvent or noxious substance in violation of 18 Pa. C.S.A. § 7303 (relating to the sale or illegal use of certain solvents and noxious substances)

Common Substances found in Drugged Driving Cases

Marijuana (cannabis, hashish)
Over-the-counter medications (cough syrup, allergy medicine, cold medicine)
Opioid pain medications (e.g., Percocet, Vicodin, OxyContin)
Sleep medications (Ambien, Lunesta, Sonata)
Anxiety medications (e.g., Xanax, Valium, Ativan, Zoloft)
Muscle relaxants (Flexeril, Soma, Robaxin)
Anti-depressant medications (e.g., Lexapro, Celexa, Remeron, Paxil, Wellbutrin)

Pennsylvania’s Zero Tolerance Drugged Driving Law

Pennsylvania has adopted a zero tolerance drugged driving law under 75 Pa. C.S.A. § 3802 (d) (1). The law makes it illegal to drive, operate or be in actual physical control of a vehicle with any measurable amount of a Schedule I controlled substance or Schedule II and III controlled substances that have not been prescribed. Under the zero tolerance drugged driving law, the discovery of any Schedule I or non-prescribed Schedule II or III controlled substance in an individual’s blood or urine within 2 hours of driving is presumed to result in driver impairment.

Understanding the Difference between Zero Tolerance DUI and Impaired Driving DUI

It is important to recognize that a person can still be charged with drugged driving if he or she is found to be under the influence of drugs, drugs and alcohol, solvents or noxious substances which impaired his or her ability to safely drive operate or be in actual physical control of the movement of the vehicle.

The prosecutor would not be required to prove that the drugs or other substances were present in your blood, breath or urine to achieve a conviction under the “impaired driving” section of the drugged driving law.

The Prosecutor’s Burden of Proof in a Zero Tolerance Drugged Driving Case

The Pennsylvania Bulletin establishes the minimum level of each drug or drug metabolite that must be present in an individual’s blood to be admissible as evidence in a prosecution for a drug-related DUI case. To obtain a conviction, the prosecutor is required to prove only that that a Schedule I drug or metabolite or non-prescribed Schedule II or III drug or metabolite was present in the driver’s blood within 2 hours of driving. The prosecutor is not required to prove that the driver was impaired or otherwise incapable of safely driving the vehicle.

DUI with Drugs or a Combination of Drugs with or without Alcohol

An individual can be charged with a drug-related DUI even if he or she is taking medically prescribed controlled substances or common over-the-counter medications. In an “impaired driving” case, the prosecutor must prove only that an individual was driving, operating or in actual physical control of a vehicle while under the influence of a drug, a combination of drugs or a combination of drugs and alcohol that impaired his or her ability to drive safely.

Evidence of Impairment in a Drugged Driving Case

To establish driver impairment, a prosecutor may introduce evidence of an individual’s unsafe driving behavior, unsteady appearance, odor of alcohol or his or her failure to successfully complete field sobriety tests (FSTs). Proving that the driver was authorized by a medical doctor to take the medication or establishing that the drug was taken within the dosage range is not a defense to an “impaired driving” charge.

I can review the evidence in your case to determine the most effective available defense if you are charged with drugged driving under the “impaired driving” section of the law.

The Difficulty of Proving Impairment in a Drugged Driving Case

Unlike proving that an individual was impaired while driving under the influence of alcohol, it is often much more difficult to establish that drugs caused driver impairment. Laboratory test results used to detect controlled substances and other drugs normally cannot determine how much of a particular substance was ingested or when the substance was substance was consumed.

Many controlled substances, prescription medications and over-the-counter drugs will remain in a person’s bloodstream long after they have been ingested and long after the drug’s impairment has worn off.

Drug Recognition Expert

In order to obtain a conviction in most “impaired driving” drug-related DUI cases, the prosecutor will need a police officer trained as a drug recognition expert (DRE) to testify in court that a suspected drugged driver was demonstrating signs of impairment related to drug use. A DRE has received training that supposedly enables the officer to be able to identify drugged drivers and the drug or drugs that are causing the driver’s impairment.

A DRE is required to determine the following:

Is a driver impaired and if so;
Is the impairment caused by a medical condition; or
Is the impairment caused by drugs and if so;
What category of drug or drugs is causing the impairment

Pennsylvania Drug Evaluation and Classification Program

In Pennsylvania, the Drug Evaluation and Classification Program (DEC) requires 72 hours of classroom training followed by a minimum of 10 consecutive days of certification training. In comparison, a medical doctor is required to possess an undergraduate degree, spend 4 years in medical school and complete 3-7 years in residency training before becoming eligible for medical licensing.

The difference in the amount of medical training received by a DRE is extremely significant because a DRE must be able to recognize and rule out medical conditions as a cause of impairment.

Categories of Drugs Identified by Drug Recognition Experts

According to the police, a DRE is trained to recognize signs of impairment in 7 different categories of illegal drugs and prescribed and non-prescribed medications. Those categories include central nervous system depressants, central nervous system stimulants, hallucinogens, dissociative anesthetics, narcotic analgesics, inhalants and cannabis.

The DRE 12-Step Test

A DRE is trained to conduct medical testing and make certain physical observations of suspected drugged drivers through a 12-step process including:

The DRE conducts a breath alcohol test of the driver; and
The DRE interviews the arresting officer at the scene regarding the circumstances of the vehicle stop; and
The DRE conducts a physical examination of the driver and takes an initial reading of the driver’s pulse; and
The DRE conducts an eye examination of the driver using horizontal gaze nystagmus and vertical gaze nystagmus to identify lack of convergence (inability to cross eyes); and
The DRE requests that the driver perform divided attention tests including the walk and turn, one-legged stand, finger to nose and Romberg balance test; and
The DRE takes the driver’s blood pressure, body temperature and conducts a 2^nd measurement of the driver’s pulse; and
The DRE measures the driver’s pupil sizes under 3 different lighting conditions; and
The DRE examines the driver’s muscle tone for rigidity or looseness; and
The DRE examines the driver for injection sites and conducts a 3^rd measurement of the driver’s pulse; and
The DRE questions the driver about current or prior drug use; and
The DRE makes a determination as to whether or not the driver is impaired; and
If driver impairment is determined, the DRE will request a urine, blood and/or saliva test from the driver for toxicology testing

Challenging the Opinion of the Drug Recognition Expert

The DRE’s opinions and conclusions are mostly subjective and can often be successfully challenged in court. The DRE test is often irreversibly tainted from the beginning if the DRE expert receives information from the arresting officer that the suspected impaired driver admitted drug usage or was found with a specific drug on their person or in the vehicle.

Confirmation Bias of the DRE

The DRE’s interview of the arresting officer is listed as the 2^nd step in the 12-step test. As a consequence, the DRE will biased and be much more likely to search for and interpret the information received during the 12-step test to conclude drug-related driver impairment based on the report of drug usage or possession received by the arresting officer.

Failing to Properly Conduct the DRE Test

State and local police departments may employ a “watered down” version of the 12-step DRE testing by skipping some of the 12 steps or by failing to properly administer the testing procedures. Failing to properly conduct the 12-step testing requirements will result in

Other Factors that Make the DRE Test Unreliable

There is no presumptive field test to detect drug usage by a driver
The DRE is not required to have acquired any medical training prior to DRE certification
There is no set number of indicators that must be met for the DRE to conclude that the driver is impaired by drugs
A DRE will often stand by his or her opinion of drug-related driver impairment even when the chemical testing comes back as negative for drugs
The DRE test does not distinguish between impairment and impairment to drive
Each DRE decides individually how much weight to give to any or all of the 12-step test indicators

Distinguishing between Medical Conditions and Drug-Related Impairment

In Pennsylvania, a DRE is not required to have a medical background and receives only a limited amount of medical training a part of the DRE certification process. Due to the limited medical training, it is often difficult for a DRE to distinguish drug-related impairment from many medical conditions that produce similar symptoms.

Muscular dystrophy, drug withdrawal, multiple sclerosis, diabetic shock and epileptic seizures all produce symptoms that may be similar to those of an individual impaired by drugs. I can have your case reviewed by an independent forensic DRE expert if you are arrested for drugged driving involving the use of a DRE.

Drugged Driving and Commercial Drivers

The penalties for commercial and school bus drivers who drive under the influence of drugs or drugs in combination with alcohol are severe and can include mandatory jail time, significant court costs and fines, loss of employment and loss of driving privileges.

Prosecutor’s Burden of Proof in a Commercial Drugged Driving Case

Under Pennsylvania’s drugged driving law, it is unlawful for individuals to drive, operate or be in actual physical control of the movement of a commercial vehicle, school bus or school vehicle while under the influence of a controlled substance or a combination of controlled substances or while under the influence of alcohol and a controlled substance or a combination of controlled substances.

To achieve a conviction under this section of the drugged driving law, the prosecutor is not required to prove that that the driver was impaired or incapable of safe driving, but only that he or she was under the influence of the drugs or drugs in combination with alcohol.

Penalties for Drugged Driving

The following penalties apply to driving under the influence cases involving the presence in an individual’s blood of any amount of Schedule I controlled substances or non-prescribed Schedule II or III controlled substances, driving under the influence of drugs or driving under the influence of drugs and alcohol.

First

Offense

Ungraded misdemeanor
72 hours to 6 months in jail
$1,000 to $5,000 fine
12-month driver’s license suspension
Alcohol highway safety school
Immediately eligible for ignition interlock license
Drug and alcohol treatment if ordered by the court

Second Offense

1^stdegree misdemeanor
90 days to 5 years in prison
$1,500 to $10,000 fine
18-month driver’s license suspension
Alcohol highway safety school
Eligible for ignition interlock license after 9 months
Drug and alcohol treatment if ordered by the court

Third and Subsequent Offense

1^stdegree misdemeanor
1 to 5 years in prison
$2,500 to $10,000 fine
18-month driver’s license suspension
Eligible for ignition interlock license after 9 months
Drug and alcohol treatment if ordered by the court

Drugged Driving Defense

I begin the defense of a drugged driving case with a comprehensive review of the facts and evidence in the case. Some cases may require the use of defense investigator to interview potential witnesses and to obtain physical evidence such as phone records, medical records, body-cam video, dash-cam video and other evidence favorable to the accused. Other cases may require the use of an independent, impartial toxicologist to review the government’s chemical testing results. A successful defense to drugged driving may include:

Challenging the legality of the vehicle stop
Challenging the legality of the arrest
Challenging the legality of any search and seizure of blood evidence
Challenging the accuracy of the blood test results
Challenging the reliability of the lab testing procedures
Challenging the accuracy of field sobriety testing

Pre-Trial Resolution of Drugged Driving Cases

When a dismissal or acquittal on the charges is not possible, I have often been able to negotiate a reduction in the charges, resulting in significantly reduced penalties.

In other cases, I have been able to help individuals avoid having a criminal record through admission into Pennsylvania’s Accelerated Rehabilitative Disposition (ARD) program for 1^sttime offenders. I can review the evidence in your case to determine the most effective strategy to protect your freedom and your ability to drive.

Start with a Strong Defense

If you have been charged with driving under the influence of a controlled substance in Bucks County, Montgomery County or the surrounding counties, it is critical that you act quickly to protect your rights and build the strongest possible defense against the charges. Phone lines are open 24 hours a day at (215) 752-5282. Call today for a free initial consultation or fill out the confidential contact form for an immediate response.

PA Drugged Driving Defense