By: William C. Head, Atlanta DUI Lawyer
Copyright 2017. All Rights Reserved.
Our national and state laws on drugs and driving are not even 125 years old, and were enacted about the same time as America’s first DUI laws, enacted in 1910 in New York and New Mexico. The focus of the original DUI legislation over a century ago was on ALCOHOL. The concept of DUI drugs was addressed by the various states a good deal later.
Driving under the influence laws now cover all substances that impair a motorist’s reaction time and central nervous system. Driving under the influence of drugs has increased dramatically in the past 50 years, and scores of drug manufacturers create and release new medications for every type of medical condition and ailment. Today, you are more likely to see a television ad for these pharmaceuticals as you will for Coca Cola.
State legislators across America, including Georgia, have passed comprehensive driving under the influence of drugs laws both contraband and prescribed. Almost every family in America has members who take either a powerful sleep aid, and antidepressant, and anti-anxiety medicine, or a benzodiazepine. People in a fast paced world ask their doctor to write a prescription for drugs. Having a physician’s prescription does not mean that the patient cannot be arrested for DUI drugs, however.
Since the recession of 2007 to 2014, the annual number of arrests for driving under the influence has fallen. Current arrest numbers in America are below HALF of the median number of DUI arrests for the years 1993 to 2006. Many factors have contributed to this steep decline, including fewer police officers, better and more numerous alternatives to driving (e.g., LYFT and Uber), and a smaller number of people able to afford today’s bar prices for booze.
Marijuana use has grown, as have arrests for driving under the influence of marijuana. Still, DUI marijuana arrests are fewer than 5% of the total cases made annually.
Plus, a recent NHTSA report shows the drivers who use marijuana posed almost no risk to the public, when compared to DUI alcohol, driving under the influence of prescription drugs, or driving under a combination of alcohol and prescribed drugs.
If you have been asked to give a DUI blood test, drugs are likely suspected. Although several states like GA and KY permit an officer to request ANY type of forensic testing (breath test, blood test, or urine test), other states limit an officer’s choice of tests (when only alcohol is detected) to a breathalyzer (e.g., California, South Carolina).
Starting in the 1860s, the proliferation of patent medicines and elixirs across the United States led to new state laws being enacted relating to three primary areas of addictive drug regulation. Although opium was a big seller in patent medicines and elixirs, many early formulas and concoctions had ethanol (drinking alcohol) as a part of their bottled product.
A drug is any substance (liquid, powder, plant material, vapors) that (when inhaled, injected, swallowed, etc.) affects how your body functions. The list of common drugs that are well-documented to be habit-forming include nicotine, caffeine, alcohol, opioids, aspirin, ibuprofen and acetaminophen. Every drug has side effects that can range from mild to potentially causing death. Just listen to the many televised ads for new prescription medications to hear the many possible problems that may occur. All medications, both over-the-counter products and prescribed drugs, have some unwanted and sometimes unsafe effects or repercussions, from muscle aches, or a possible headache, tarry stools, or even stroke, heart attack or death.
Since all drugs that are taken into the body pass through the brain, the drug can change the signals and messages within the brain cells, and to parts of the body (like an arthritic knee). Neurotransmitters are the conveyance mechanism that sends signals across synapses, and different drugs can interfere with or even block these signals.
Some categories of drugs, like heroin and marijuana, can activate neurons because their chemical structure mimics the action of a natural neurotransmitter. Because drugs can impact the cerebral cortex (part of the brain that controls thinking and problem-solving), the limbic system (the brain’s reward system) and the brain stem (controls breathing, heart rate, and sleeping), all functions of the body from rate of blood flow, to breathing, to vision can be impacted by drugs.
From a definition perspective, a drug is “addictive” if its effect tends to make one dependent on getting more of the drug to take. Addictive drugs cause the brain to crave more of the drug. The National Institute on Drug Abuse defines “addiction” as a chronic, relapsing brain disease that is characterized by compulsive drug seeking and use, despite harmful consequences. It is considered a brain disease because drugs change the brain’s structure and how it works.
Alcohol is definitely a drug, and a poison, when consumed in excessive quantity. So, the history of drugs in America would not be complete without discussing alcohol, and alcohol’s tumultuous history. Most people who have taken the drug “alcohol” can attest to the negative side effects after a big dose: nausea, imbalance, dry mouth, loss of memory and headache the next day.
First, in terms of government “regulation” of drugs, the labeling of bottles of all substances sold to the public began to be addressed, in order to prevent narcotics and other impairing chemicals from being an undisclosed ingredient. Many of the liquids and powders put in these elixirs and medicines were addictive drugs, and getting addicted to the product increased sales, once the person was hooked on the particular opiate or sedative.
Next, regulators sought to advise when a poison was present in the bottle. So, when a container had any type of “poison” in it, like alcohol, or chloroform, the bottle or vial had to give a warning that if consumed in large quantities, death was a potential consequence.
Lastly, the advent of pharmacies (drug stores) in the last century and enactment of drug laws mandating that certain substances either be only dispensed by a physician or through a doctor’s prescription to be filled by a licensed pharmacy are relatively new concepts.
One of the habit-forming drugs that many U.S. government officials in the 1920s sought to have “controlled” this way was cannabis products, including marijuana, but few jurisdictions passed state drug possession laws for this now ubiquitous drug until decades later, when President Franklin Roosevelt pressed for passage of laws to restrict driving while impaired by many substances that could diminish central nervous system functions.
Because regulation and enactment of criminal laws against possession or ingestion of known mind-altering substances did not start until after the American Civil War, hiring a criminal defense attorney for a drug possession case was not even part of state drug possession laws or federal drug possession laws. Although Abraham Lincoln was known to be one of the first American attorneys to advertise his legal services, “drug lawyer” was not even part of the vernacular in the mid-1800s. Over the next 150 years, drug lawyers would represent over 40 million individuals charged with drug possession, drug trafficking and related crimes like distribution of drugs and money laundering, all over America.
Today, private legal counsel for possession of drug paraphernalia or drug possession or drug trafficking can be very costly, especially if a trial or an appeal from a conviction is needed. Appointed counsel (public defender) is always available to a person facing any crime with jail or prison time.
Driving under the influence of drugs usually leads to both a loss of driving privileges, and (in many cases) jail time. So, Uncle Sam or a state public defender or a conflict defender (when co-Defendants need to have separate criminal attorneys) is assigned to defend the accused felony drug possession case. Since misdemeanor drug possession charges — even first offender — also have jail time in most states, these criminal cases also need to have a criminal defense attorney.
The Pure Food and Drug Act was passed in 1906, during the Theodore (Teddy) Roosevelt Administration. This was merely a federal labeling law that mandated disclosure of alcohol, cocaine, heroin, morphine and cannabis. This first federal law did not try to mandate that drugs had to be prescribed by a physician, or that a pharmacy (druggist) had to dispense the drug.
The secret formulas in many patent medicines and elixirs (examples of which are displayed above) were now mandated to be listed on the label. Opiate drugs, which were already a major problem in many Asian countries like China and the Philippines, were the major category of unlabeled drugs affected by the new disclosure law, and sales of opium-based formulas dipped about 33% after the law required full disclosure.
President Teddy Roosevelt also actively tried to get other nations to work together to stem the uncontrolled sale and distribution of dangerous, addictive drugs, particularly those that were opium-based. The reasoning was that addicted citizens became totally unproductive, and did not work. They added nothing to society, and were dependent upon opium products and elixirs.
President Roosevelt, in 1908, created an Opium Commissioner’s Office and appointed Dr. Hamilton Wright as the first “Drug Czar” in America.
Dr. Wright’s appointment led to the first international conference at Shanghai in 1909, where strategies and agreements for limiting the future production, sale and exportation of these opiate and other habit-forming drugs were made. Wright, who was born and trained in Canada, was known as the leading expert on drugs and addiction in the world.
In 1910, New York and New Mexico passed laws dealing with the criminal act of driving under the influence of alcohol. The first laws only addressed “impairment” from alcohol, not “being over the limit.” Furthermore, drugs were not even considered an issue in that day and time. DUI drug laws were only enacted during the Franklin D. Roosevelt Administration. The history of the passage of these drugged driving laws was overshadowed by the Great Depression and World War II.
In 1911, after studying the international problems with addictive drugs, Dr. Wright made the claim that the United States consumed more of the world’s habit-forming drugs than any other nation on earth, per capita. Like future pronouncements in the War on Drugs some 75 years later, such an inflammatory statement to the American public started to place a national focus on this issue. Americans were ready to take aggressive action to stem the loss of workforce productivity and business vitality that became associated with drug addiction of this nature. The second international conference was held at The Hague in the Netherlands in 1911. This meeting led to an International Opium Convention in 1912, which reached an accord about limiting the production and distribution of opiates.
Next, in 1914, Congress used the Commerce Clause as its basis to enact the Harrison Narcotic Act of 1914. The focus of this first curtailment of drugs law was opiate drugs and coca leaves. The federal law was broadly worded, and allowed doctors who prescribed any opiate drugs to an addict, to be prosecuted.
While drug regulation was being addressed, the Temperance Movement to stop alcohol use in America (and worldwide) started in the late 1800s, and went from a grass roots movement in churches and at public rallies, before eventually being embraced by state legislatures all across America. Thirty-six of the forty-eight states ratified the Amendment, banning alcohol production and sales in America. This major industry was immediately sidelined, with all the jobs, and — more importantly — the TAXES that it generated.
So, the “demon rum” — alcohol — was banned in the United States by the Eighteenth Amendment that took effect January 17, 1920. This movement to outlaw alcohol was largely pushed by women and church groups across the nation, but proved to be very unpopular on many levels. One unexpected problem that quickly materialized was the huge drop in state government tax revenues from alcohol sales, which was especially devastating in the Depression of 1929, when money was scarce and needs were many.
The United States was not the first, nor the last nation to ban alcohol. Canada tried it in 1918, but repealed that ban in 1920. Russia, Hungary, Finland, Iceland, Norway, and many other nations tried (unsuccessfully) to ban alcohol. Today, only about a dozen Muslim-majority countries like Afghanistan, Iran, Saudi Arabia, United Arab Emirates, Kuwait, Pakistan, Sudan, Somalia, Yemen and some smaller nations have a total ban on possession of alcohol or sale of alcohol.
With alcohol sidelined, America took aim at other drugs. In 1925, at the International Opium Convention, the United States pushed for international regulation of cannabis and hashish oil on an International level. Within about 10 years, all major powers followed the lead of the USA, and passed laws to regulate cannabis products of all types.
Franklin D. Roosevelt ran for President in 1932 on a platform of putting America back to work, and part of his plan was to repeal the 18th Amendment through passing a new Amendment to the Constitution. Some of America’s top leaders were among the millions going to “speakeasies” to party and consume bootlegged alcoholic beverages.
Due to widespread resistance to the Prohibition laws, Roosevelt sought to recapture billions of dollars in annual “booze” taxes for the state and federal governments Money was needed to fund the country, and bootleggers were making millions of dollars, with no tax revenues coming to Uncle Sam.
Because organized crime had filled the void when alcohol was illegal to manufacture, distribute or sell, widespread and brazen public nullification of Prohibition became a major underground industry. The violence and rampant crime did not end when Prohibition ended. Smugglers found a market for cheaper alcohol sales, when prices were too high for many to afford. But, the major crime syndicates shifted their sales to other products like drugs and cigarettes, when taxes went up in many states.
On February 20, 1933 the 21st Amendment was passed by state conventions across America, and not by requiring a vote in the requisite number of state legislatures. State politicians feared backlash from Temperance Movement activists in their states. So, roughly a month after Roosevelt was sworn in as President, votes at state conventions effectively repealed the 18th Amendment by passage of the 21st Amendment. With the passage of the Twenty-first Amendment, alcohol (and its hefty tax revenues) was back, and America’s #1 drug of addiction was again legal.
In 1935, Roosevelt urged all states to enact state traffic laws prohibiting driving while impaired by regulated drugs, like cannabis, heroin, opium and other known impairing substances. By agreement with Columbia Broadcasting System (CBS), the Attorney General broadcast Roosevelt’s call for states to act on the Narcotic War on March 21, 1935. This was a NATIONAL broadcast heard by nearly every American, since television did not exist in 1935. Within the next decade, all states fell in line by passing drug possession and other laws relating to DUI drugs. So, driving under the influence of drugs was now criminalized, but few officers possessed any “detection” skills, beyond asking a driver to self-incriminate, by admitting use of drugs.
For three decades, from 1935 to 1965, not much happened. The 1960s were the decade during which illicit (non-prescribed) drugs became the focus of both news stories, and law enforcement officers. Driving under the influence of drugs was becoming more common. Police reported that many crimes were connected to the drug trade, and that the numbers were increasing. The “hippie” generation, with rebellious and socially dissident groups marching and protesting against racial inequality, the unpopular and costly Vietnam War in Southeast Asia, and women’s rights, alarmed the older generation. In the 1960s, as drugs became symbols of youthful rebellion, social upheaval, and political dissent, the government focused on how to interdict drug trafficking, drug usage and the related criminal activity perceived to be associated with the possession of drugs.
In his third year in office, President Richard M. Nixon declared a “war on drugs.” The date was June 17, 1971. Citing statistics showing that a large number of American servicemen in Vietnam were addicted to heroin and other opioids, Nixon called drugs “public enemy number 1 in America.” Thus began America’s War on Drugs. Drug possession laws were the new focus in both federal legislative circles and in states across America.
One of the main theories of the new laws pushed by the Nixon administration was that if the criminal penalties for possession of drugs were very severe that users would stop trying to BUY drugs. Nixon created a new federal agency to lead the way in changing our federal laws on drugs and crimes associated with selling drugs, trafficking drugs, and even possessing drugs. Most state legislators took this cue from Nixon to bolster their driving under the influence of drugs statutes, such as Georgia’s law that took away all driving privileges for 6 months (or more, if a repeat offense) even if the drug possession was not in a car!
The U.S. Constitution suffered as new laws under Nixon were crafted to allow police to execute “no knock” warrants, where police would break down the door of an apartment or home, without having to announce that it was the police coming through the door. The Fourth Amendment against unlawful search and seizure was pushed to the side to try to ferret out drugs at all levels – the sale of drugs, the transporting of drugs, and the use and purchasing of drugs.
Shockingly, under Nixon, marijuana became a Schedule I drug, a category reserved for the most dangerous drugs. Other nations were de-criminalizing personal use of marijuana, while Nixon pushed it to the top rung of dangerous drugs.
Despite setting up a commission to study marijuana, and receiving its recommendation to de-criminalize marijuana, Nixon ignored the recommendation. The Commission cited the minimal “dangers” of recreational marijuana use, and published a report stating that marijuana was NOT a serious drug like crystal meth or heroin. Nixon refused to adhere to the commission’s recommendations for decriminalizing marijuana, even if a small amount for personal use.
Alcohol was then, and still is, the greatest cause of imprisonment, divorce, addiction and misery in the world. The Government left alcohol regulation relatively untouched, while creating mandatory, lengthy jail and prison sentences for recreational marijuana users. This started a major resistance movement by marijuana advocates, and spawned such activist groups and organizations like NORML.org and The Lindesmith Center. Much like the backlash against Prohibition in the 1920s and early 1930s, millions of Americans began to sneak around and smoke marijuana for relaxation and health issues, such as depression, PTSD, chronic pain and a myriad of other reasons
By 1977, about a dozen states decriminalized marijuana. President Jimmy Carter made a campaign promise to back off the aggressive policies of the now-disgraced Nixon presidency. The Senate Judiciary committee sought to decriminalize weed, where less than an ounce was possessed, for personal use. However, parents of young adults and teens saw more and more marijuana and other drugs being used, and demanded that the Government toughen its policies. Many older Americans, who had no contact with marijuana, associated permissive attitudes about sex and drug use with the sharp rise in marijuana use.
Once the Democrats were out of office, President Ronald Reagan escalated the so-called “War on Drugs.” First Lady Nancy Reagan made her “cause” to “just say NO” to drugs. Reagan helped push through the Sentencing Reform Act in 1984, boosting heavy prison sentences for millions.
Major changes in America’s federal conspiracy laws led to grossly unjust criminal prosecutions of anyone and everyone associated with known drug users. Police enforcement efforts helped fill our prisons and jails with marijuana users and users of other recreational drugs, like cocaine and crack cocaine, or “crack”.
This type of cheap cocaine was smoked, and gave a quicker and more intense “high.” The main users were African-Americans and low-income Americans. In less than 20 years after 1980, an increase of nearly 800% in incarcerations for non-violent and recreational drug users occurred.
With millions of additional people being prosecuted for drug crimes and going to jail or prison, more criminal defense lawyers were needed for legal advice, trials and appeals. The golden age of criminal attorneys parallels very closely the War on Drugs, since the exploding arrest rate across America led to full employment for any drug attorney available. Public defenders, prosecutors, judges and appellate judges all benefited from the avalanche of new cases.
Much of this massive increase in criminal law work was funded by the taxpayers of America, because many drug users, especially drug addicts and alcoholics, were broke, and had to have appointed counsel.
Additionally, unintended fallout from the heavy-handed oversight policy was that access to syringes was limited by the government, and people with HIV or AIDS were using dirty needles. Many died from an avoidable disease, because access to syringes was controlled by the government. Tens of thousands of deaths from addicts re-using needles occurred.
When President Clinton came to office, he did little to help the problem except to shift more attention to treatment, rather than incarceration. Shockingly, he failed to follow a drug study’s recommendation to drop the distinction between crack cocaine and cocaine, with the huge disparity in prison time greatly outstripping the jail time for powder cocaine.
Clinton also faltered when it came to ending the federal ban on federal funding for syringe access programs, as a measure to curtail the use of dirty needles.
Prison populations for drug users reached their highest levels under President George W. Bush, before starting to fall during the Obama Administration. The huge impact on the present federal deficit from paying for millions of sick people, addicted to drugs, being housed in prisons and jails over four decades is something seldom mentioned by politicians seeking public office.
The chart below shows this staggering number of citizens who went to prison between 1971 and 2008, fueled by the War on Drugs.
Yet, several of the really dangerous illicit or contraband drugs have shown great resilience during the multi-decade, federal fascination with curtailing marijuana use. Heroin, crystal meth and other new “designer” drug overdoses are killing at alarming rates.
For example, opiate overdose (mostly from illegal heroin, but thousands from prescribed drugs like Oxycodone or Percocet) deaths are up more 400% since the George W. Bush era, with no end in sight.
Director of National Drugs Control Policy Michael Botticelli, appointed by President Barack Obama, was featured on a December 2015 segment of the award-winning television show, 60 Minutes. Botticelli bluntly stated that the last 40 years of the War on Drugs has been a huge failure.
The story points out that over 22 million Americans are now addicted to drugs, with alcohol being the leading drug of abuse. Botticelli had worked as a state drug director in Massachusetts before taking over the federal post. Botticelli is changing the federal language and policies of drug use, including calling drug addiction a “disease.”
Botticelli is not embracing opening the door to legalizing recreational drug use, due to the many known social disadvantages and educational barriers that occur when recreational usage becomes an addiction.
The Obama Administration is the first administration to see a REVERSAL of the 35 year trend for an increasingly large number of Americans who go to prison each year, many of whom are there due to an addiction to drugs or to alcohol.
In 2017, a new administration will be put in office by voters in the United States, and the attitude and focus on drug addiction will be set by that new leader. Certainly, as we saw when Nixon took the path when declaring a War on Drugs, even his own advisors could not alter his path of pushing for laws to incarcerate millions of Americans for marijuana possession crimes, despite scientific studies showing that the drug did not have the addictive effect of heroin, cocaine, or methamphetamine.
When little or no rehabilitation, job training or meaningful steps to end drug addiction are implemented in prison, the detained person is still at risk to engage in the addictive behavior upon leaving custody.
From a cost standpoint, the price to rehabilitate would be a pittance compared to the revolving door of a prison for recidivists. Additionally, true addicts generally do not work, and are a financial burden on their families, their State, and the federal government.
Non-profit groups like the Human Rights Watch, the Vera Institute and the Brennan Center for Justice point out that the incarceration of a massive number of Americans for the last three and one-half decades cannot be justified as a deterrent to violent crimes.
In fact, follow-up studies on prisoners released from long-term incarceration show that many non-violent prisoners LEARN how to commit crimes in prison, and (when they finally get released and are looking for work) often turn to crime when they find that their criminal record will not allow them to obtain a decent job.
In a July 2014 episode, British comedian and TV host John Oliver [HBO’s Last Week Tonight program] effectively excoriates the inexcusable attitude of the United States in its federal prison system having about half of its total prison population from individuals committing drug-related offenses.
While hilarious, the shocking truth is that American politicians have created a national hysteria over personal drug usage (e.g., marijuana), and American prisons and treatment facilities have grown in number and in political power. Billions of dollars are at stake, and the American public is footing the bill.
Similarly, statistics show that over 25% of all the prisoners in state prisons are there based on felony drug possession offenses.
The routine is hilarious, but at the same time utterly depressing, to think that our criminal justice system only cares about reducing costs for incarceration and not about changing detainees’ behavior patterns and breaking prisoners’ addictions that lead to recidivism.
About the Author
William C. Head is a 40-year criminal defense attorney and veteran litigator. His undergraduate degree from the University of Georgia in 1973 was in History.
Criminal defense is Mr. Head’s primary law practice area, and driving under the influence of drugs, possession of drugs, and drug trafficking cases are an important segment of his law firm’s caseload. He and his law partners can be reached by accused citizens facing drug possession charges who are seeking legal representation by a private criminal attorney.
Mr. Head has also established a national referral network of drug lawyers in Georgia, in the other 49 states, and in the District of Columbia.
Mr. Head can be reached by e-mail: firstname.lastname@example.org, or by calling 404-567-5515 or 1-888-384-4323 (1-888-DUI-HEAD).