Archive for August, 2013

Should Kansas Adopt a “Per Se” Law for DUI Drugs Criminal Cases?

Thursday, August 15th, 2013

With the announcement by the Justice Department this month that the federal government will not use federal law to trump state laws legalizing medical marijuana and recreational marijuana in small quantities, states may focus more on drugged driving.  Drugged driving cases traditionally have been more difficult for law enforcement and prosecutors to prove because the government must actually establish that the driver’s physical or mental driving ability was impaired.

Although DUI cases involving alcohol may also be based on actual evidence of impaired driving, Kansas law also permits someone to be convicted of DUI on a “per se” basis with a blood alcohol concentration (BAC) of .08 percent or higher.  This means that even if someone drives perfectly, the individual may be convicted of DUI if his or BAC reaches this threshold.  Per se DUI laws involving intoxicated drivers make it much easier for law enforcement to obtain criminal convictions in cases involving drunk driving as opposed to drugged driving.

Until recently states did not use per se laws for illicit drugs or prescription drugs because the metabolites for these drugs can appear in drug tests for days, weeks and even months after being ingested.  Because the legalization of marijuana may mean that pot use becomes more prevalent, some contend that DUI laws involving drugs and enforcement for DUI drugs cases must be made more effective.

This push to strengthen DUI drugs laws and enforcement may lead Kansas and other states to adopt “per se” DUI drugs laws like a number of existing states have already done.  There are a number of reasons that DUI laws involving marijuana based on a certain threshold of metabolites in a driver’s blood pose a questionable policy option.  Because the metabolite of cannabis may appear in a drug test for up to thirty days after ingesting or smoking the substance, drivers will face DUI convictions even if they are not the slightest bit impaired.  The function of DUI policy is to discourage dangerous driving practices that can result in severe injury, property damage and wrongful death.  The metabolites of cannabis may appear in a DUI drug test for up to thirty days after the drug is used.  Therefore, this type of law essentially makes it impossible for drivers who use drugs like marijuana to drive at all without the risk of a DUI conviction.

The drivers who would be treated most unfairly by such a result would be visitors from other states where medical marijuana and/or recreational marijuana are legal.  These drivers could essentially be convicted for DUI for engaging in lawful activity.  Further, Kansas residents would be placed in similar peril if our state passes a medical marijuana law.

Our Kansas DUI Attorneys at Cummings and Cummings know that a DUI conviction can have a devastating impact on one’s future.  If you are arrested for DUI, our dedicated team of Kansas DUI lawyers work diligently to protect our clients’ freedom and future.  We have over 30 years of combined litigation experience so contact us today at 316-264-1548 to learn about your rights and options.