Interviewer: How does probable cause apply to drug related DUIs?

Michael Munoz: An officer can’t make an arrest unless he has probable cause that a crime has been committed with a DUI, he has to have probable cause with a DUI, so what he’s looking for is signs and symptoms of possible impairment is what he’s looking for. So, an officer with a drug case with probable cause, a drug DUI that is, he’s looking for signs and symptoms of possible impairment and so the officer is not really focusing on just drugs. An officer is going to be focusing on anything that could show signs and symptoms of impairment. So he’s looking for things like bloodshot water eyes, odor of either alcohol or odor of any recent ingestion like for marijuana, officers will sometimes smell the seat inside of the car, the person smells like marijuana. They’ll look for whether or not someone is acting nervous, how they respond to questions, are they lethargic.

The Term “On the Nod” is Used for People Hooked on Prescription Drugs like Anti-Depressants and Painkillers

With drugs, specifically prescription drugs, like some anti-depressants and pain killers, if too much is taken, they have a term being called on the nod, where it looks like somebody is nodding off or dosing off or sleeping, someone is very lethargic, so officers look for that as well. So officers are making a lot of different observations to try to find probable cause. One of the tools that they use in those observations are the field sobriety tests. The field sobriety tests are a tool for officers to help develop probable cause and that’s why a person, when investigated for DUI, should always politely refuse to do any field sobriety tests. They are not mandatory by law and a person is allowed to refuse those field sobriety tests because really they are only meant for an officer to gain more information about you.

A Person is Allowed to Refuse the Portable Breath Test Without MVD Consequences in Arizona

Also, in terms of probable cause, officers use what is called a portable breath test for alcohol. A person in Arizona is allowed to refuse the portable breath test at the scene without MVD consequences and they should, but that is different from a breath or blood test at a station that is the blood test, or the Intoxilyzer 8000 breath test, that test, if refused, you could lose your license for a year, so it is advisable before you make that decision to ask to speak to an attorney before you make that decision.

Police Officers Make Personal Observations and Decide Whether to Charge Someone With a Drug Related DUI

Interviewer: What do police officers look for first of all and how do they determine whether someone has been using medical or prescription medication, is it usually due to someone admitting to that? How does that work?

Michael Munoz: It is very subjective. Officers are really are just making their own personal observations and they are making their own judgments. If an officer rules out alcohol completely, and is still investigation you, he is likely trying to see whether or not you are under the influence of illegal or prescription drugs. Sometimes an officer will even ask ‘Have you taken any drugs, have you taken any illegal drugs, have you smoked marijuana?’ They might even ask are you taking any prescriptions? That question is to specifically find evidence against you and someone should never answer those types of questions.

It is Highly Advisable to Exercise the Right to Remain Silent When Being Questioned by the Police

It is always advisable that someone in that situation should always exercise their right to remain silent, has to speak to an attorney before answering any of those types of questions because an officer is literally making judgment calls. If you are on prescription drugs, like I said they are looking to see if you are lethargic, how you are reacting, whether or not you admitted to or not, those are all things the officer is taking into account and then he’ll make a judgment call whether or not he has probable cause and he’ll decide whether or not to arrest the person. So it’s just an officer making judgment calls on the scene there.

By Michael Munoz

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