At the beginning of 2022, the law regarding DUI diversion changed. DUIs are no longer eligible for diversion in California. Please contact our office with any questions. Email us at OR Call us at: (415) 886-6333

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Law Offices of Aaron Bortel

When someone is arrested for a marijuana-related DUI, they are told that they’re required by law to take a blood or urine test for marijuana. The officer should inform the individual that when they obtained their driver’s license, they signed documentation under penalty of perjury of implied consent, meaning if they are arrested for a DUI, they will take a chemical test (there is no requirement to consent to the DRE test). As long as the suspect consents to the requested tests, they will be considered in compliance and will not face the consequences associated with a refusal. Urine tests are the most unpredictable and unprovable types of tests, so blood tests are preferred. If for some reason a blood test is unavailable or cannot be performed, then a urine test may be done.

If a drug recognition expert is available, then they will conduct the 12-step process for determining whether or not the suspect is impaired, whether or not the impairment relates to a drug or medical condition, and what category or combination of categories of drugs are the likely cause of impairment. The first step is to conduct a breath alcohol test and then interview the arresting officer. The drug recognition expert will also want to know about the type of driving the arresting officer observed, and the type of interaction they had with the suspect. The problem here is that the drug recognition expert’s opinion can become biased based on what they learn from the arresting officer, such as what type of drug the officer found in the suspect’s vehicle.

The next step is the preliminary examination during which they will take the suspect’s pulse. Next, they will conduct an eye examination, which is usually comprised of the horizontal gaze nystagmus test and vertical gaze nystagmus test. These tests involve having the suspect follow with their eyes a finger or an object that is moving in front of them. The fifth step is to have the suspect complete a divided attention task, which is a modified Romberg balance test. The subject will also be asked to complete the walk-and-turn test (i.e. take nine steps forward and nine steps backward in heel-to-toe fashion).

The one-leg-stand stand test will be conducted, which requires the subject to stand on one leg while counting. The finger-to-nose task will also be conducted, which requires the subject to alternate hands to touch their nose in accordance with the drug recognition expert’s direction.

For the seventh step, they’ll put the subject in a dark room and perform an examination to determine how their pupils react to a flashlight. Another step in the process is to check muscle tone, perhaps by pinching the skin or feeling the rigidity of the muscles in the arms or other parts of the body. The ninth step is to look for injection sites near the joints, on the arms, on the hands, and anywhere else someone may inject drugs. The eleventh step is to make an opinion about what substance the subject is intoxicated by, which will be followed by a collection of blood or urine, and a written report of all of the findings.

In defending someone charged with DUI, we will look at the drug recognition expert’s report, determine when they began the DRE training program, confirm that they have the necessary certifications and/or recertifications, and consider their results from previous cases they have evaluated. This will allow us to get an idea about the accuracy of their predictions. Drug recognition experts are not medical personnel; they are police officers who have been trained by other police officers, most of whom have no medical background. Oftentimes, these evaluations can be challenged.

For more information on DUI Cases a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 886-6333 today.

Aaron Bortel

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Call Us 24/7: (415) 886-6333
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