Oregon law has special requirements for DUII prosecutions that are based on an allegation that the person was under the influence of a combination of alcohol and a controlled substance. In order to proceed on that theory the state is required to make that allegation specifically, in writing, in the charging instrument.
These hybrid DUII charges have become more common in recent years as law enforcement has become better trained to screen for drug intoxication. Every police agency now has one or more “Drug Recognition Experts;” officers who are specially trained to detect drug use. The testing is very detailed and involves taking vital signs, observing pupil response to light and looking for other physical signs of drug use. It is not unlike having a basic physical examination at your doctor’s office. A trained Drug Recognition Expert who properly administers the battery of tests is allowed to offer an opinion at trial, as an expert, that a person was under the influence of a certain type of drug and alcohol.
While a Drug Recognition Examination is important in a DUII/Drug prosecution, it is not absolutely necessary for the state to obtain a conviction. In a recent case, the Oregon Court of Appeals held that an admission to recent drug use with alcohol use can support a conviction even without a Drug Recognition Expert. In State v. Harmon (Decided December 15, 2010), the Court dealt with a case where an officer observed a subject who appeared “dazed” and performed poorly on field sobriety tests. Also, the defendant admitted to consuming marijuana four hours before the arrest, as well as consuming alcohol, although there was not a strong odor of alcohol on his breath.
The Court of Appeals held that the admission of consumption of marijuana four hours before, the admission of drinking and the poor field sobriety tests was enough for a jury to find that person guilty of DUII, even though there was no Drug Recognition Examination or testimony of a Drug Recognition Expert. This was true even though the jury had no evidence before it on how marijuana and alcohol interact to produce intoxication.
The lesson is to exercise care when using any amount of alcohol when taking controlled substances, including those prescribed by a doctor. The police are waiting and trained to detect and prove that your impaired by a combination of alcohol and drugs.
As Portland DUII and Drug Crime attorneys, we at James F. O’Rourke, Jr. and Associates are committed to the vigorous defense of DUII cases based on impairment cause by the cumulative effects of alcohol and controlled substances.
By James F. O’Rourke Jr.
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