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Jasper County DUI: Sober and lost during the first stop, five minutes later, second stop under the influence of drugs and unsteady, same police officers?

Jasper County DUI, Prescription Drug DUI: RIVERA v.THE STATE, A11A0132, Court of Appeals of Georgia, May 9, 2011.

DOYLE, Judge.

Deborah Rivera was arrested in Jasper County Georgia for failure to maintain lane and Prescription Drug DUI.  She was convicted by a jury and appealed from her conviction for committing two counts of DUI less safe and one count of failure to maintain her lane. On appeal, Rivera contended there was insufficient evidence to prove that she was a less safe driver due to prescription drugs and that the venue was proper.  The Standard of Review on insufficiency of evidence appeal is that “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  A Jasper County officer was on patrol at approximately 9:00 p.m., when he saw a vehicle crossing over the center line and forcing him off the road. Rivera pulled over to speak to a second officer by the side of the road before the first officer reached her. After pulling over and listening to the conversation and assuming that Rivera was lost and that her erratic driving was due to distraction while navigating, the first officer did not investigate the weaving but resumed his patrol.  A second time he encountered Rivera one car ahead of him driving five to ten miles per hour below the posted speed limit, braking for no reason, and weaving in and out of her lane numerous times. The first officer then initiated a traffic stop.

Rivera’s speech and movements were slow, had food running down the front of her shirt, and her car rolled as they spoke as it was not in park. Rivera told the officers that she had taken Ativan.  Field sobriety evaluations were administered including the walk-and-turn and one-leg-stand field sobriety tests and exhibited clues of impairment. She took a blood test which indicated lorazepam, zolpidem, and mirtazapine.

Rivera contends that the evidence was insufficient to show that she was less safe to drive due to the influence of drugs. OCGA § 40-6-391 (a) provides as follows: “A person shall not drive or be in actual physical control of any moving vehicle while: . . . (2) Under the influence of any drug to the extent that it is less safe for the person to drive.” There was testimony (assumably from crime lab personnel) that two of the drugs were central nervous system depressants and that the combination of all of the drugs would have an additive effect detrimental to safe driving. The Court of Appeals found the evidence was sufficient to find her guilty of less safe drug DUI. Citing,  Duncan v. State, 305 Ga. App. 268, 270 (1) (699 SE2d 341) (2010) (“In determining whether a driver is impaired by alcohol or other substances, the manner of his driving may be considered as a factor if there is evidence that he has consumed alcohol or drugs.”); Key v. State, 289 Ga. App. 317, 322 (2) (657 SE2d 273) (2008) (“The testimony of a trained police officer that an individual is impaired and a less safe driver, based on his observations at the scene, is admissible as direct evidence against the defendant.”); Walczak v. State, 259 Ga. App. 140, 143 (2) (575 SE2d 906) (2003) (“Evidence as to the manner of driving may be taken into account where there is evidence that the defendant is DUI to determine whether or not his manner of driving shows him to have been affected by the intoxicant to the extent that he drives less safely and carefully than he might otherwise have done.”) (punctuation omitted). See Corbin v. State, 305 Ga. App. 768, 769 (1) (700 SE2d 868) (2010) (“The testimony of a single witness is generally sufficient to establish a fact.”) (punctuation omitted; quoting OCGA § 24-4-8).

Questions arising from this opinion are:

(1) Was this a prescription or non-prescription drug DUI?

(2) Who testified that Lorazepam, Zolpidem, and Mirtazapine have an additive effect and could cause impairment?

(3) Did they have the proper training and experience to make these conclusions?

(4) Can a state toxicologist or a police officer ever have enough training to testify to these facts given that they are just generally reading from a drug manual?

(5) Were the drugs at or below therapeutic dosage recommended by their manufacturers?

(6) Is the DUI Drug statute an unconstitutional abuse of the police power?

O.C.G.A. §§ 40-6-391(a)(2) and (a)(6) as applied to prescription drugs such as lorazepam, zolpidem, and mirtazapine in such amounts as to be at or below generally accepted therapeutic levels in the medical community in a blood test are an improper exercise of police power and are unconstitutional under both the Georgia and United States Constitutions.  Bohannon v. State, 269 Ga. 130, 497 S.E2d 552(1998). Under its police power, the state can enact laws that promote public health, safety, and welfare. Id. Unlike driving while under the influence of large amounts of alcohol to the extent one’s blood alcohol level is over 0.08 grams, there is no reasonable public purpose for criminalizing driving after having consumed prescription drugs under the generally accepted therapeutic levels or the amount generally prescribed by doctors for medical purposes unless prohibited from driving by the prescribing doctor. Even with alcohol, there are blood levels from which a legal presumption of sobriety or no presumption is inferred. See, O.C.G.A. § 40-6-392 (holding a presumption of sobriety for levels under 0.05 and no presumption of impairment from 0.05 to 0.08.)  there are no such formal or legal guidelines established for prescription drugs.

(7) Is the current prescription drug regime unconstitutionally void?

O.C.G.A. §§ 40-6-391(a)(2) and (a)(6) as applied to prescription lorazepam, zolpidem, and mirtazapine in such amounts as to be at or below generally accepted therapeutic levels in the medical community in a blood test is void for vagueness because it fails to give people fair warning of what conduct is prohibited and is unconstitutional under both the Georgia and United States Constitutions.  Bohannon v. State, 269 Ga. 130, 497 S.E2d 552(1998). In applying this standard to alcohol DUI statutes, the Courts have determined that where the statute informs the public that a person who has consumed a large amount of alcohol chooses to drive at his own risk then the statute is sufficiently definite so the public can avoid the proscribed conduct. Lester v. State, 253 Ga. 236, 320 S.E.2d 142 (1975).

Further, a statute may also be void for vagueness if it defines a criminal offense in such a manner that it encourages arbitrary and discriminatory enforcement. Kolendar v. Lawson, 461 U.S. 352, 357 (1983). A legislature must establish at least minimal guidelines to govern law enforcement. Id. Where the legislature fails to provide such minimal guidelines, a criminal statute may permit “a standardless sweep that allows policeman, prosecutors, and juries to pursue their predilections.” Id.

Further, the Court of Appeals decision Kachwalla v. State, 274 Ga. 886, 561 S.E.2d 403 (2002), held that “less safe to drive” and “rendered incapable of driving safely” set the same standard of impairment necessary to establish that a driver is driving under the influence of alcohol or other intoxicating substance.  In Bouie v. City of Columbia, 378 U. S. 347 (1964), the Court held that an unforeseeable judicial enlargement of a criminal statute narrow and precise on its face violated the Due Process Clause. It pointed out that such a process may lull “the potential defendant into a false sense of security, giving him no reason even to suspect that conduct clearly outside the scope of the statute as written will be retroactively brought within it by an act of judicial construction.” 378 U. S., at 352. Common sense would tell an ordinary citizen that “incapable of driving safely” which is the legislative standard for driving after having consumed prescription drugs would require some accident or unsafe act, while “less safe” can mean less efficient or some other subtle act without the benefit in a prescription drug DUI of statutory presumptions of alcohol impairment contained in O.C.G.A. § 40-6-392. This judicial broadening of the prescription drug standard also makes the statute void for vagueness.

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