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Operating Under The Influence Of A Controlled Substance Or With A Restricted Controlled Substance

If you have been charged with operating under the influence of a controlled substance or with a restricted controlled substance, you are probably asking many questions about how the law enforcement officer made the determination, what evidence will be used against you, and what you can do to challenge the charge. The absence of any scientific standard for measuring impairment by use of a controlled substance and the irrelevance of whether a restricted controlled substance impaired your ability to drive will probably be of great concern to you. In fact, the "reasonableness of legislative measures" such as these was questioned by the Wisconsin Court of Appeals, which ultimately decided that no legal reason compelled the Court to overturn the law. State vs. Smet, 288 Wis.2d 525, 709 N.W.2d 474, 2005 WI 263.

Milwaukee DWI Charges, Penalties and Defenses Vary by Statute

You may face prosecution under one or both provisions of the law which subjects anyone
convicted to the same penalties as for a conviction for operating under the influence of alcohol. For example, if you have two previous convictions for operating under the influence of alcohol and you are now charged with operating under the influence of a controlled substance or operating with a restricted controlled substance, you face the penalties for operating under the influence 3rd offense despite the fact that neither of your first two offenses involved the use of controlled substances. For an outline of the procedure in court, some of the motions available for your defense and the penalty structure if convicted, see the other pages of our web site addressing the charge you are facing based on the number of previous convictions.

Here is the pertinent statutory language:

346.63 Operating under influence of intoxicant or other drug. (1) No person may drive or operate a motor vehicle while: (a) Under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving; or (am) The person has a detectable amount of a restricted controlled substance in his or her blood. (b) The person has a prohibited alcohol concentration. (c) A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of any combination of par. (a), (am), or (b) for acts arising out of the same incident or occurrence. If the person is charged with violating any combination of par. (a)(am), or (b), the offenses shall be joined. If the person is found guilty of any combination of par. (a), (am) or (b) for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under ss. 343.30 (1q) and 343.305. Paragraphs (a), (am) and (b) each require proof of a fact for conviction which the others do not require. (d) In an action under par. (am) that is based on the defendant allegedly having a detectable amount of methamphetamine, gamma!hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.

967.055(1m) Definitions. In this section:
(a) "Drug" has the meaning specified in s. 450.01 (10)
(b) "Restricted controlled substance" means any of the following:

  1. A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.
  2. A controlled substance analog, as defined in s. 961.01 (4m), of a controlled substance described in subd. 1.
  3. Cocaine or any of its metabolites.
  4. Methamphetamine.
  5. Delta-9-tetrahydrocannabinol.

The two most common scenarios involve a motorist lawfully taking per prescription the
prescribed dosage of a painkiller such as Percocet (Oxycodone and acetaminophen), Oxycontin (time release Oxycodone) or Vicodin (hydrocodone) or a motorist who has smoked marijuana in the last few days. The usual scenario involves a preliminary breath test showing .00 for alcohol and a blood test result showing .00 for alcohol. In most cases the law enforcement agency then requests the State Laboratory of Hygiene or the State Crime Laboratory to test the blood for the presence of a panel of legal and illegal controlled substances. Because of a backlog based on a claimed deficiency in funding, the state agency will not be able to perform the analysis for many months.

If at trial there is admissible evidence of a blood analysis showing a detectable amount of Delta 9 THC, cocaine or any of its metabolites, or one of the other substances referenced in the Sec. 967.055(1m), there will be no issue at trial as to whether the substance impaired your ability to operate a motor vehicle. The prosecutor is not required to present any evidence that the marijuana or cocaine, which may have been consumed days earlier, had any effect on your ability to safely operate a motor vehicle. The scientific literature clearly supports the defense position that use of marijuana or cocaine a few days before the operation of a vehicle can result in a detectable amount of the substance while there is no evidence that the level of the restricted controlled substance caused any impairment of your ability to safely operate the vehicle. There are many challenges that can be filed including a motion challenging the blood draw absent a warrant under circumstances where the prosecutor is not able to demonstrate the exigent circumstances that would otherwise justify a warrantless blood draw. This situation is substantially different from an arrest involving alcohol that dissipates on average at a rate of .015 g/210 L per hour.

If your blood test result is positive for an opiate such as Hydrocodone there will be a specific concentration such as 300 ug/L in the Confidential Report of Laboratory Findings. For arrests occurring on or after February 1, 2011, the admissibility of this evidence at trial is dependent upon the prosecutor presenting a person who is qualified to testify under Sec. 907.02 and 907.03 as to the relevancy and effect of the quantity of the controlled substance detected in your blood. If the prosecutor obtains admissibility of the evidence, the prosecutor must convince the jury that the quantity of the controlled substance impaired your ability to operate a motor vehicle - that is, that the opiate or other controlled substance, whether prescribed or not prescribed, rendered you incapable of safely driving a vehicle. What qualification does a chemist possess to provide a reliable opinion regarding how a drug, at a certain level, affected your ability to safely drive a motor vehicle? The chemist has no knowledge of your individual body chemistry and has no knowledge of your history of usage of the controlled substance. Neither the chemist nor anyone else has ever performed any testing using various levels of the controlled substance to see how your motor skills may be affected.

Strong consideration should be given in your case to a rigorous challenge to any effort made by a prosecutor to gain admissibility of any chemical evidence or to gain admissibility of any opinion from a chemist or any other witness claiming to be an expert. Furthermore, a strong challenge should be made to any attempt by the prosecutor to admit evidence from an officer who claims to have special training in the detection of individuals who are operating under the influence of a controlled substance.

Call Hayes & Rothstein to Discuss Your Case with an Experienced Milwaukee DWI Attorney

For a detailed explanation of what challenges can be made by the attorneys at Hayes &
Rothstein, S.C.
, we need to meet with you so that you can explain exactly what happened, which helps us determine what evidence we will need to challenge the decision of the law enforcement officer to make the arrest. If the officer did not have probable cause to make the arrest, your Fourth Amendment rights were violated, and all evidence obtained as a result of the illegal arrest must be suppressed.

If you have been charged with operating under the influence of a controlled substance or with a restricted controlled substance, contact us online or call us at 414.291.9911.

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