What is Drug and Alcohol Violations Law?
Federal drug scheduling and potential chargesBy Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on July 10, 2023 Featuring practical insights from contributing attorney Ben Sessions
Use these links to jump to different sections:
- An Introduction to Drug and Alcohol Law
- Common Drug & Alcohol Violations
- Penalties for Violating Drug & Alcohol Offenses
- Should I Talk to a Lawyer for My Drug & Alcohol Violation?
- FAQs for an Attorney
- Finding the Right Attorney for Your Needs
There are many federal and state laws in the United States regulating drug and alcohol use. The penalties for a drug or alcohol violation depend on whether you’re charged with a federal or state offense, which state you’re charged in, and the specific circumstances of your case.
If you’ve been charged with a drug or alcohol offense, or think charges are coming, it’s wise to consult with an experienced criminal defense attorney. The following is a brief overview of federal drug scheduling and potential charges that can accompany the violation of these laws to give you confidence as you seek legal help.
An Introduction to Drug and Alcohol Law
The government regulates both legal and illegal drugs as well as the consumption of alcohol.
Consequences for the illegal use of drugs depend on the substance’s scheduling. Even if you possess medications legally, you may face consequences if you illegally use them.
Federal law assigns drugs to control categories called “schedules” under the Controlled Substances Act.
The Drug Enforcement Administration (DEA) is tasked with enforcing the Act and scheduled substances based on:
- The drug’s actual or potential for abuse
- Scientific evidence of the drug’s medical effect
- The state of current scientific knowledge about the drug
- The history and pattern of abuse
- Any risks to public health
- The extent to which the drug is addictive or habit-forming
- Whether the substance is a precursor to another controlled substance
Currently, the federal government cites five “schedules” or categories under the Controlled Substances Act:
- Schedule I: These substances have a high potential for drug abuse, and there is no currently accepted medical use in the U.S.
- Examples: LSD, heroin, and cannabis.
- Schedule II: These drugs have a high potential for abuse and have an accepted medical use, sometimes with restrictions. Misuse of these drugs may lead to severe dependence.
- Examples: cocaine, methamphetamine, and phencyclidine (PCP).
- Schedule III: Abuse of these drugs can lead to moderate or low physical dependence but high psychological dependence.
- Examples: ketamine and testosterone.
- Schedule IV: These substances have currently accepted medical uses and have a low potential for abuse or dependence.
- Examples: Xanax, Valium, and Ambien.
- Schedule V: These substances have limited risk for abuse or dependence and have currently accepted medical uses.
- Examples: Robitussin and Motofen.
Common Drug & Alcohol Violations
Common drug & alcohol violations include operating a motor vehicle under the influence, possession, and distribution:
- DUI: A DUI charge can accompany driving under the influence of alcohol, a legal drug, or a controlled substance. In the case of alcohol, law enforcement officers can use breath alcohol concentration and other tests to measure a person’s level of intoxication. Measuring the presence of drugs is more difficult and is typically done through urine or blood tests. A DUI conviction can subject you to jail time, fines, probation, or driver’s license suspension.
- Possession: If you are caught with an illegal substance or possession of drug paraphernalia (such as methamphetamine pipes), you may be charged with possession of a controlled substance. Depending on the amount you possess, you may be charged with possession with intent to distribute, which often carries heavier penalties.
- Distribution: These charges can flow from the transportation or sale of illegal drugs. They can also attach if you distribute prescription drugs—even if you were legally prescribed the medication. The penalties for distribution can vary depending on the drug in question and the amount distributed.
Another charge to be aware of in this legal area is the underage consumption of alcohol, which includes serving alcohol to someone who is underage (younger than 21 years of age).
DUI Drug Charges
“Far and away the most frequent kind of charge you’ll see is driving under the influence of alcohol to the extent that you’re a less safe or impaired driver,” says Ben Sessions, a DUI and drug offense attorney at Sessions & Fleischman in Atlanta, Georgia.
But DUI charges aren’t limited to alcohol. “The trickier charges—and we’re starting to see more of them—are DUI drug charges,” says Sessions.
To better understand DUI drug charges, it’s helpful to know the difference between DUI per se laws and DUI impairment laws:
- DUI per se laws set a legal limit on a driver’s blood alcohol content (BAC). The limit is generally .08 BAC for non-commercial drivers over 21 years old. With DUI per se laws, the prosecutor simply has to prove that you were over the legal limit when driving based on various alcohol tests.
- DUI impairment laws require prosecutors to prove that you were actually impaired by alcohol or some other substances when driving. You could be under the legal limit but still be impaired by a substance when operating a vehicle.
All states have DUI per se laws for alcohol. Some have them for drugs as well. One of those states is Georgia, where Sessions practices. “If the substance can be lawfully consumed, they can’t charge you with DUI per se,” he explains. “So, you have to draw a distinction between legal drugs versus illicit drugs such as heroin.”
Take the example of Xanax. “Say a person hasn’t consumed any alcohol, but they’ve consumed Xanax, which they were lawfully prescribed by their doctor,” says Sessions. “The person takes the Xanax, drives their car, and then gets stopped because they’re weaving on the roadway. For that scenario, there is no set legal limit that applies. If a drug can be consumed lawfully, then the state has to show beyond a reasonable doubt that you’re impaired or not driving safely as a result of those drugs.”
The same principle would apply to cannabis in states that have legalized various uses of it. “Let’s say an officer comes into contact with a person who lawfully consumed marijuana and got behind the wheel. Since people can lawfully consume marijuana under some circumstances, the driver can’t be charged with a DUI simply for having consumed marijuana.” Again, there would have to be proof beyond a reasonable doubt that the person’s driving was actually impaired due to their consumption of marijuana.
“Alternatively, let’s say you’re driving under the influence of heroin,” adds Sessions. “There’s no circumstance in which a person can lawfully use heroin since it’s a Schedule I controlled substance. In that case, it’s a DUI drug per se charge,” meaning the fact that the person used that drug and drove is enough.
What explains the fact that lawyers are seeing more DUI drug charges?
“I think it’s a combination of a couple of things,” says Sessions:
- “First, we simply have more people who are consuming medications and illegal drugs more frequently now than previously in our history.”
- “Second, we also have law enforcement officers who are more trained to look for people being under the influence of drugs. And pragmatically speaking, I think we’re seeing an increased law enforcement effort to enforce DUI drugs because there don’t seem to be as many DUI alcohol cases. The number of those cases seems to be falling as the number of people who are willing to take the risks associated with alcohol is falling. But usually, where you see a falloff in one, you’ll see a pickup in the other.”
Penalties for Violating Drug & Alcohol Offenses
Whether it’s alcoholic beverages, legal prescription drugs, or illegal drugs, violating U.S. drug and alcohol laws can lead to serious legal trouble, from encounters with law enforcement to sanctions and disciplinary action.
Here are some examples of penalties a court can enforce for violating drug laws or alcohol policy:
- Revocation of your driver’s license
- Substance abuse treatment programs
- Education programs
- Drug testing
- Community Service
- Jail time
Should I Talk to a Lawyer for My Drug & Alcohol Violation?
A drug or alcohol violation can impact your life in many ways, from criminal penalties to potentially losing your job. Sessions says that one of his clients’ biggest concerns is their employment.
“This is a pressing question for the vast majority of my clients. What I generally tell them is, first, to get their employee handbook out. Go ahead and see what your employer’s policy is, or if they have a policy with regard to affirmative reporting of an arrest. That needs to be the triage you’re doing in the immediate timeframe.”
Sessions adds that not reporting an arrest when you’re required to is generally viewed as lying about it. “The last thing you want to do in any circumstance is lie about an arrest, or appear to be lying about it, when the policy requires reporting it. Nothing will cost you your job quicker than trying to run from a problem as opposed to confronting it head-on.
“Second, I try to go ahead and get the vast majority of my clients to begin engaging in a substance abuse evaluation and any treatment that might be recommended by that. I believe most employers want to know that you’re taking steps to deal with the issue in a responsible manner.”
In addition to recommending specific steps to mitigate the consequences of your arrest, a lawyer can help you obtain the results of any drug or alcohol testing, interview the officer who conducted the tests or arrested you, and challenge the results and your arrest. These cases can be complicated because of the combination of state and federal laws, and your lawyer will know how to navigate the law.
A lawyer will anticipate potential problems with your case and advise you on how to approach them. Your lawyer will also keep track of deadlines and file all the paperwork with the necessary courts and agencies, giving you one less thing to worry about.
FAQs for an Attorney
Below are some common questions you might want to consider when meeting with an attorney for the first time.
What makes a drug charge a felony?
There are many factors that can raise a drug charge from a misdemeanor to a felony, including the type of drugs involved, how much of the drugs you possessed, whether you were distributing or trafficking drugs, and whether you have any prior drug charge convictions or it’s a first offense.
What would happen if I was following state law but not federal law?
A leading example of this conflict is cannabis. Many states have legalized cannabis, but it’s still illegal at the federal level. If you live in a state where cannabis is legal, you can legally possess and use certain amounts of cannabis in specified places, such as your private residence. But you cannot legally transport cannabis across states lines, even between two states where cannabis is legal, since that would violate federal laws against drug trafficking. If you’re engaged in any cannabis-related business, it’s essential to consult with a lawyer about what you can and cannot do.
How long will my drug charges stay on my record?
A criminal conviction will stay on your record permanently unless you successfully move to have it expunged. The rules around expungement vary by state and are complex. The process is typically a lengthy one, and it’s wise to speak with a lawyer in your location about your specific situation to see if it’s possible.
Finding the Right Attorney for Your Needs
It is crucial to approach the right type of attorney—someone who can help you through your entire case. To do so, you can visit the Super Lawyers directory and use the search box to find a lawyer based on your legal issue or location.
Additional Drug & Alcohol Violations articles
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