What Are my Defenses to Driving Under the Influence of Drugs?

It is a common misconception that you can’t get a DUI charge while driving high. Unfortunately for many people, they learn the hard way that there is a special category of crime in Virginia called “Driving Under the Influence of Drugs”, or DUI-D for short. The law allows the police to charge someone with DUI-D if they have probable cause to believe the person is driving while under the influence of any drug. This includes street drugs, marijuana, even prescription medications.

What Does a DUI-D Charge Involve?

To prove a DUI-D, the prosecutor must introduce evidence that the accused was driving a motor vehicle on a public highway while under the influence of any sort of drug. The first thing the prosecutor does is show that the police had a reasonable suspicion that the driver was breaking some law in order to pull the car over. This usually involves an allegation that the driver was violating minor traffic laws such as changing lanes without signaling, driving over the speed limit, and so on. The next step in the prosecution playbook is to try and prove probable cause that the accused was under the influence of a drug. The way the government tries to prove this part of the case is usually through field sobriety tests—done on the side of the road—and statements made by the accused. Finally, the police must get the accused to agree to let a nurse draw his or her blood. If the accused doesn’t agree to a blood draw, the officer has to get a search warrant to initiate the blood draw. Once they have the blood, it goes off to the state lab and the results come back showing what—if any—drug or drugs were affecting that person while driving.


Similar to alcohol-based DUIs, a drug-related DUI can have “presumption” levels of intoxication. Theses presumptions are limited, though, and only apply to four specific drugs: cocaine (0.02 mg/L), methamphetamine (0.01 mg/L), PCP (0.01 mg/L), or MDMA/ecstasy (0.1 mg/L). If your blood shows any of these drugs at or above those levels, the prosecution can argue that you are presumed to be under the influence. With any other drug not listed—and there are thousands—the prosecution must bring in a toxicologist from the state lab to tell the jury about the drug and its effects on a person’s ability to safely drive.

What is the Punishment for a DUI-D?

If you or someone you know was charged with a DUI-D, it is a very serious offense. If convicted, the law takes the person’s driver’s license away for anywhere between 6 and 12 months, makes them go through lengthy probation, and pay steep fees. A DUI-D is a class 1 misdemeanor, which also means that in addition to everything else, you could go to jail for up to 12 months, get a fine of up to $2500, or a combination of the two.

What Defenses Can be Used to Help Me at Trial?

If you are charged with DUI-D, you need an experienced trial attorney in your corner. There are many legal defenses available to you and a skilled attorney will be able to use these defenses to help you at trial. A major defense is to attack the reason for being pulled over in the first place. Your attorney can file a “motion to suppress the evidence” which challenges the prosecution to prove that there was a lawful reason for you to be pulled over in the first place. Another major defense is to challenge probable cause. Unlike DUIs that involve alcohol, there are no chemical tests that the police can use on the roadside to determine if drugs are in a person’s body. A trained attorney will be able to challenge the probable cause for you being arrested and beat the case before it ever goes to a verdict.

Even after the arrest, there are other defenses that can be used. Your attorney can attack the legality of your blood being drawn. A recent law change means that the police cannot just take your blood without your permission or without a search warrant. If you didn’t consent to your blood being taken and the police didn’t get a search warrant, your attorney could attack the legality of your blood being illegally taken. If the court agrees, then the results of the blood tests are thrown out. Without lab results, the government will have a hard time proving what drugs, if any, were affecting you.

With any DUI-D trial that does not involve any of the four “presumption” drugs (cocaine, meth, PCP, and MDMA), the prosecution has to subpoena a state toxicologist to testify. A skilled defense attorney will have experience with various cases involving any number of drugs and will be prepared to ask key questions of the toxicologist at trial. It is not uncommon to have a cross-examination result of the toxicologist saying that they cannot be sure if the drug in your blood was able to affect your ability to safely drive.

What Do You Do Now?

A DUI-D charge can radically change your life. You can go to jail, face steep fees and fines, and have to spend months taking class after class all while you no longer have a driver’s license. There are, however, a number of strong technical defenses that a talented attorney can use to help protect you at trial.

Contact us today for a free consultation.