Your DUI Legal Rights
The Fifth Amendment of the United States Constitution guarantees EVERY PERSON in America—citizen, visitor from another country, illegal immigrant—-EVERYONE—that you cannot be forced to be a witness against yourself if the police suspect you of a crime, or have arrested you for a crime. This LEGAL PROTECTION grew out of our founding fathers’ revulsion for kings and totalitarian rulers torturing confessions and self-incriminating testimony from those accused of crimes. Random drug testing assumes you are guilty until you have proven your innocence. That is NOT how our legal system is supposed to work. Too often, however, skilled police officers (trained by the State in courses such as verbal judo) cajole and trick accused citizens into GIVING UP THEIR RIGHTS, and thereafter obtain a confession or incriminating statement that may ultimately be the missing piece of evidence required to support a conviction.
State governments in the USA (with the exception of California, whose citizens VOTED TO GIVE UP its Constitutional protections a few years ago) ALL have State Constitutional provisions that often give BROADER protections against police overreaching (and improper/illegal acts) than the United States Constitution. Since around 1970, the end of the Warren era Supreme Court, the federal courts have steadily whittled away at legal protections that we THOUGHT we all had. The best example is our Miranda Warnings, wherein the police are SUPPOSED to tell a suspect about his/her right to remain silent, right to an attorney, etc. These rights have steadily been watered down by the federal (and some state appellate) courts, so that the EXCEPTIONS to the rule have all but swallowed the protections that were ruled upon in 1966.
While other countries in Europe decriminalize marijuana use (personal use, not distribution or sale), the United States is arresting and prosecuting between 650,000 and 800,000 people per year. One day, this will change. But for now, the federal government and most state governments ACTIVELY pursue EVERY drug offense. For this reason, KNOWING YOUR RIGHTS is critical. DO NOT believe or assume that the POLICE will tell you your rights or how to assert them. YOU MUST know what to do, what to say and how to act, if confronted by police as a suspect or potential suspect of a crime having been committed.
If you smoke a joint at a party, and three days later, while perfectly clear-headed (i.e., all the psychoactive benefit has subsided), and are forced to take a mandatory urine test, you are unquestionably being required to incriminate yourself without probable cause. Because marijuana is a fat-soluble substance, it is typically stored in the fatty tissues of your body and will slowly be leached out, as the liver gets rid of it over several days. Heavy, daily users of marijuana can have positive results from metabolites (the burn-off products) of marijuana for 4 to 12 weeks or LONGER, in some cases. In the event a positive result is claimed against you (especially with urine testing), IMMEDIATELY ask for a blood sample to be collected or go to a hospital or laboratory for your own sample to be collected and analyzed. Have it tested independently by a private lab, even if part of the sample is given to an employer or police. Assume that you may have to PROVE that you are not impaired (or that the reading is a false positive that can occur from passive inhalation or from ingestion of common, over-the-counter products, or from certain illnesses). See an Examples of Testing Errors in this web presentation .
The same general rules apply to OTHER DRUGS, including prescribed drugs. So long as you have a prescription, and do not take more than the prescribed amount, any quantity of drugs in your system may be within therapeutic levels, and arguably not impairing (i.e., you can’t be shown to be a drugged driver “ like a drunk driver).
Even if the drugs in your system are CONTRABAND—illegal to possess or use FOR ANY PURPOSE AND IN ANY AMOUNT—legal defenses nevertheless may exist to a DUI / DWI / OUI / OWI / OMVI / DUII prosecution. Always demand an INDEPENDENT sample of your blood or urine (if forced to give a sample to police), so that you will have a way to challenge the government’s criminal case against you. DONT ASSUME that the Crime Lab will obtain accurate results, and not mix up your sample with that of another person!!!