Even if you have no alcohol in your system, you can still be arrested for DWI

According to national statistic, arrests for DWI are on the decline. There's a lot of reasons for that, but increased enforcement, as well a change in attitude about drinking and driving have been major factors. That's not good news for police department that receive money for DWI enforcement. Whether or not that's the reason, there's no doubt there has been increase in the number of people arrested for "drugged driving"; in most of those cases, the individuals have taken breath tests, and the results have come back showing no alcohol in thier system.

Going to jail to prove your innocence

If you're like most people, you are probably to surprised - and maybe shocked - to hear people are arrested for DWI who have no alcohol in their system. The typical scenario is someone is stopped, and the officer believes they are intoxicated. They administer some type of breath test, and it comes back .00. Instead of letting them go, they arrest them, and then get a blood test to determine whether they have an drugs in their system. Many times, that test comes back negative. That's great, except for the fact that you got arrested, spent some time in jail, and probably had to pay a bondsman and hire a lawyer.

An Atlanta news station recently looked at this issue, and found several instances where people had been wrongly arrested for DWI. One of those individuals was a bartender who was arrested while she was on her way home from work, and told the news station that she didn't realize you could be arrested for something you didn't do. 

The two other cases were both students. In both cases, the officer believed they had been smoking marijuana. And in both cases, blood tests came back negative, showing there was nothing in their system.

The use of Drug Recognition "Experts"

The problem is with one of newest applications of "junk science", the Drug Recognition Expert. The Atlanta investigation focused on what it said was one of the most hightly trained officers in the department, and someone who had been certified as a Drug Recognition Expert. Despite that - and certification - he found several people were "impaired", when the results came back showing they had nothing in their system. The officer was even awarded a medal by Mothers Against Drunk Driving", and the Cobb County DUI task force was recognized for it's work. That's pretty remarkable; where else but the criminal justice system can you be rewarded for screwing up. The more accurate interpretation is that the criminal justice system (at least from the law enforcement side) isn't concerned with getting it right - only with with makeing arrests.

You might be thinking that following this story, the Cobb County DUI task force took steps to address the problem; you would be wrong. Their response was that the individuals probably had something in their system, but it just wasn't detected by the tests. In other words, the officer was better able to detect the presence of an illegal than the lab.

The problem with DRE trained officers is just beginning

The title of Atlanta story was "The Drug Whisperer: Drivers arrested while stone cold sober". If you're thinking this is something that happened in Georgia, and it couldn't happen here in Waco, Texas, think again. The training everyone receives is the same; which means it's just as bad everywhere.

You can expect this to be a continuing problem. More officers are receiving their DRE "certification", so more of these evaluations are being done. The use of marijuana also appears to be on the rise, since it is more "socially acceptable." That means officers are stopping drivers who they believe have smoked marijuana, but they don't have a quick test to perform to determine whether they are intoxicated. The default is to conduct a blood draw, but by then you have been arrested.

You need an experienced DWI defense attorney and an expert

If you have been arrested for driving while intoxicated, and your being charged with "Drugged driving" and not drunk driving, you need to find an experienced DWI defense attorney. Much like FST's, the DRE test has almost no scientific validity. It sounds convincing to jurors though, unless you know how to attack them. If your blood tests shows some substance in your bloodstream, that's a another issue that requires an experienced DWI defense attorney. There are no set levels for controlled substances like there is for alcohol. In other words, there is no presumption that you are intoxicated if your blood levels are over a certain level. That is an extremely complex and technical issue, and you not only need an experienced DWI attorney, but also an expert.

If you have been arrested for drugged driving in Waco or McLennan County, or in Bell, Bosque or Hill Counties, and want to talk with us about your case, call 254-296-0020, or fill out the contact form on this page.

Walter Reaves
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Criminal Defense Attorney Walter Reaves has been practicing law for over 30 years.
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