DUI charge could include controlled substances

The presence of illegal drugs and controlled substances in a driver’s blood or other bodily fluids would constitute driving under the influence of drugs under a bill heard by the Transportation and Telecommunications Committee Feb. 28.

LB659, introduced by Wilber Sen. Russ Karpisek, would declare any amount of a Schedule I controlled substance or one of its metabolites or analogs in a driver’s blood, saliva, urine or other bodily fluid as evidence of driving under the influence of drugs. The same would apply to Schedule II drugs, with an exemption granted to those consuming drugs pursuant to a prescription. The bill would not provide a defense against impairment resulting from legal use of a Schedule II controlled substance.

Karpisek said LB659 implements a policy that already applies to commercial drivers due to a 1988 federal law. One-third of states also have laws prohibiting any amount of a controlled substance in a driver’s bodily fluids, he said.

Karpisek said the number of drivers testing positive for drugs has increased 5 percent and tests for drugs following fatal motor vehicle traffic accidents in 2009 returned positive in 33 percent of cases.

Karpisek said LB659 is modeled after drunk driving laws for minors. In the same way that a minor with a detectable amount of alcohol in his or her system is charged with driving under the influence, he said, LB659 would make any amount of a controlled substance in one’s system an impairment.

“I think illegal drugs are illegal drugs and there shouldn’t be a [threshold] level,” Karpisek said.

Omaha city prosecutor Marty Conboy testified in support of the bill. Currently, law enforcement is required to establish a visually identifiable impairment before pursuing an arrest for driving under the influence of drugs, he said.

“Even a person in a crash who had marijuana sitting in the seat next to him or her would not rise to that level,” Conbody said. “You would have to [demonstrate an impairment in a field test] before the officer could legally even ask you to submit to a [drug] test.”

Brian Mary of Lincoln spoke in opposition to the bill, saying it could lead to unjust convictions for driving under the influence of drugs. Those who use marijuana experience a high that lasts 2 hours, he said, but the drug can be detected weeks or months after use. Therefore, drivers could be convicted of driving under the influence of drugs while suffering from no impairment, he said.

The committee took no immediate action on the bill.