The laws surrounding Driving Under the Influence are designed to punish this specific recklessness—the choice to endanger others. But what happens if that choice was never made, can you still get a DUI?
The terrifying reality is that yes, you can be arrested, charged, and potentially convicted of a DUI even if you were the victim of a drugging incident. Police officers on the side of the road are trained to detect impairment, not intent. They see a driver who is weaving, slurring their speech, or acting erratically, and they act to remove that threat from the road. They generally do not have the tools, time, or inclination to determine if your state was caused by unknowingly driving while drugged or voluntary recreation.
However, while an arrest may be unavoidable in the heat of the moment, a conviction is not a foregone conclusion. Virginia law recognizes that criminal liability usually requires a “mens rea”—a guilty mind. If you were drugged without your consent, you may have a powerful legal recourse known as the defense of involuntary intoxication.
This is one of the most complex areas of criminal defense. It requires untangling toxicology reports, challenging police observations, and proving a negative: that you did not intend to become intoxicated. If you find yourself in this nightmare scenario, you need an experienced DUI defense attorney immediately. Whether the substance was a synthetic sedative or you require a marijuana DUI lawyer because of a spiked edible, understanding your legal footing is the first step toward clearing your name.
The Legal Reality: Can Drugged But Unaware Still Be Charged?
To understand how a victim can become a defendant, you must first understand the structure of DUI laws in Virginia. Under Virginia Code § 18.2-266, it is unlawful to operate a motor vehicle while under the influence of alcohol or any drug that impairs your ability to drive safely.
The statute creates a situation that borders on “strict liability.” This means that the prosecutor primarily needs to prove two things:
You were operating a motor vehicle.
You were impaired at the time of operating the vehicle.
On the roadside, the “why” does not matter to the arresting officer. Their primary duty is public safety. If a driver is passing out at the wheel because someone slipped GHB into their drink, the officer sees the same physical danger as a driver who voluntarily took recreational sedatives.
Consequently, you can be drugged but unaware and still be charged with DUI. The police charge is based on probable cause of impairment. The argument that you are innocent because you were drugged is a defense to be raised in court, not a “Get Out of Jail Free” card that works on the side of the highway. This distinction is crucial because it manages your expectations: the arrest is often inevitable, but the verdict is where the battle is won.
Involuntary Intoxication DUI Virginia: The Affirmative Defense
In Virginia, if you were drugged without knowing, your legal strategy will likely hinge on the doctrine of “Involuntary Intoxication.”
Unlike a standard defense where you might argue “I wasn’t drunk” or “the officer’s test was wrong,” involuntary intoxication is an affirmative defense. This is a high-stakes legal maneuver where you essentially admit to the physical act—”Yes, I was driving, and yes, I was impaired”—but you argue that you are not criminally responsible because the intoxication was forced upon you.
The Standard of Proof
Virginia case law, specifically precedents like Jackson v. Commonwealth, establishes that for a DUI conviction to stand, the consumption of the intoxicant must generally be voluntary. If the intoxication was involuntary, it negates the criminal intent necessary for a conviction. However, because it is an affirmative defense, the burden of proof shifts. You must prove by a preponderance of the evidence that:
- Unknowing Consumption: You did not know you were consuming an intoxicant, or you were forced to consume it under duress.
- External Causation: The impairment was caused solely by this external force, not by a mixture of voluntary alcohol and the involuntary drug.
- Severe Impairment (The Insanity Standard): The intoxication was so severe that it rendered you incapable of understanding the nature and quality of your actions. In Virginia, the defense of involuntary intoxication is often treated legally similarly to a temporary insanity defense.
This is a difficult bar to clear. It is not enough to say, “I felt weirder than usual after two beers.” You must demonstrate that the drugging created a state of mind where you could not control your actions, including the action of getting into the car.
Common Scenarios: How Unknowingly Drugged Driving Happens
DUI cases for driving while unknowingly drugged arise from a variety of situations, not just the stereotypical “club scene.” While drink spiking in bars is a major cause, accidental intoxication happens in other ways that can catch drivers off guard.
The “Spiked Drink”
This is the most common association with innocent drugged DUI defense cases. Perpetrators use drugs like Rohypnol (“Roofies”), GHB (Gamma-Hydroxybutyrate), or Ketamine. These substances are odorless, colorless, and tasteless. When slipped into a soda or an alcoholic beverage, they can cause rapid sedation, memory loss, and extreme motor control failure.
Prescription Medication Errors
Involuntary intoxication can also occur if a pharmacist makes an error, dispensing a medication at a much higher dosage than prescribed, or if a doctor administers a sedative for a minor procedure (like dental work) and discharges the patient without realizing the drug has not worn off. If the patient was told they were safe to drive but was chemically impaired, they lacked the intent to break the law.
Accidental Marijuana Consumption
A driver might eat a brownie or gummy offered by a friend, unaware that it contains high levels of THC. The delayed onset of edibles means the driver might get behind the wheel feeling fine, only to be struck by a wave of psychoactive impairment twenty minutes later on the highway.
How Do DRE Officers Work in DUI Drug Cases?
In many cases involving drugged without consent DUI law, the prosecution relies on the testimony of a Drug Recognition Evaluator (DRE). If you are stopped and blow a 0.00% on the breathalyzer but are clearly impaired, the police will call in a DRE.
A DRE is an officer with specialized training to identify drug impairment. They use a standardized 12-step protocol to determine if a driver is impaired, and if so, what category of drug is responsible.
The 12-Step DRE Protocol
- Breath Alcohol Test: To rule out alcohol as the primary cause.
- Interview of Arresting Officer: Getting the background of the stop.
- Preliminary Examination: Checking the suspect’s pulse and general demeanor.
- Eye Examinations: Checking for Horizontal Gaze Nystagmus (HGN), Vertical Gaze Nystagmus (VGN), and lack of convergence.
- Divided Attention Tests: The Romberg Balance, Walk and Turn, One Leg Stand, and Finger to Nose tests.
- Vital Signs: Measuring blood pressure, temperature, and pulse again.
- Dark Room Examination: Checking pupil size under different lighting conditions.
- Muscle Tone Examination: Checking for rigidity or flaccidity.
- Check for Injection Sites.
- Subject’s Statements: Asking the driver what they took.
- Opinion of the Evaluator: The officer forms a conclusion.
- Toxicology: Requesting a blood or urine sample.
The DRE Trap for Victims
The danger for a victim of drugging is that the DRE protocol is designed to detect presence, not intent.
- Misinterpretation of Distress: A victim of drugging may be in a state of medical shock. Their heart rate may be racing (tachycardia) due to panic or the drug’s effect. A DRE might interpret this simply as a sign of stimulant use.
- Physical Inability: A person who has been “roofied” often loses muscle control. They will fail the Walk and Turn test, not because they are “high” in a recreational sense, but because their central nervous system is shutting down. The DRE records this as a failure indicative of guilt, rather than a symptom of poisoning.
What Happens If Someone Drugs You and You Drive?
Understanding the timeline is vital for your defense.
1. The Arrest and Refusal Charge Risks
When you are pulled over, you may be in a blackout state. Officers might ask you to submit to a blood test. In your confused, drugged state, you might refuse or be unable to comprehend the request. In Virginia, “unreasonable refusal” is a separate charge that results in an automatic license suspension. A skilled attorney can sometimes argue that you were physically unable to consent or refuse due to the involuntary intoxication, but this is a complex argument.
2. Administrative License Suspension (ALS)
If you are charged with a DUI, you face an immediate Administrative License Suspension. For a first offense, this is typically 7 days. If the charge involves a refusal or if it is a second offense, the suspension is longer. Even though you are the victim, you lose your ability to drive before you ever see a judge.
3. The Medical Danger
Beyond the legal trouble, you are in physical danger. Police processing centers are not hospitals. If you are severely intoxicated by an unknown substance, being thrown in a “drunk tank” can be life-threatening. This highlights why the defense often argues that police negligence in failing to seek medical aid for a poisoning victim should be a factor in the case.
Building Your Defense: Steps to Challenge Drug Impairment Evidence
If you are facing a DUI defense when unknowingly drugged, you are fighting against a presumption of guilt. To win, you must aggressively gather evidence to support your affirmative defense.
Here are the essential steps to challenge drug impairment evidence:
1. The Race for Toxicology (The “Golden Hour”)
This is the single most critical factor on how to prove you were drugged in a DUI case.
The Problem: Police blood tests can take months to process at the state lab. By the time results come back, the evidence is set. More importantly, standard police panels often look for common street drugs (cocaine, heroin, meth, THC) but may miss exotic synthetic analogues used in date rape drugs.
- The Solution: You must get an independent toxicology screen immediately after release.
- The Science: GHB is known as a “ghost drug.” It has a half-life of roughly 30 to 60 minutes. It can be undetectable in blood within 4 to 8 hours and in urine within 12 hours. If you wait until the next day to get tested, the chemical proof of your innocence may be metabolized forever.
2. Video Surveillance and Digital Forensics
Your attorney must issue preservation letters immediately to any venue you visited before driving.
- Bar Footage: We look for video evidence of someone tampering with your drink or interacting with you suspiciously.
- Change in Demeanor: We look for footage showing you acting sober and normal, followed by a sudden, drastic shift to incapacitation. This “cliff-drop” effect is characteristic of spiking and distinct from the gradual impairment of alcohol.
- Credit Card Statements: Proving you purchased only one drink contradicts the officer’s observation of extreme intoxication, suggesting an external agent was involved.
3. Expert Witness Testimony
A successful defense often requires a forensic toxicologist.
- Extrapolation: An expert can look at the estimated time of driving and the levels of drugs found (if any) to explain that the concentration was inconsistent with voluntary use.
- Symptom Analysis: They can testify that your behavior (e.g., total amnesia, inability to stand) is consistent with a central nervous system depressant like Rohypnol and inconsistent with the amount of alcohol you admitted to drinking.
4. Character and Fact Witnesses
We interview the people you were with. Did you complain of feeling sick suddenly? Did you seem confused? Credible testimony from friends or colleagues can establish that you had no intent to consume drugs and that your impairment was a sudden, alarming medical event.
How to Prove You Were Drugged in a DUI Case: The Burden of Proof
Courts are naturally skeptical of this defense because, frankly, many guilty drivers try to use it as an excuse.
To overcome this skepticism, your defense must be consistent and corroborated.
- Medical Records: Did you go to the ER or Urgent Care immediately after release? Medical records documenting “suspected poisoning” or “overdose” are powerful evidence.
- Lack of History: A clean driving record and lack of prior drug history help paint the picture of a responsible citizen who was victimized, rather than a habitual drug user trying to escape a charge.
Why This Requires a Specialist
Defending against a DUI involving involuntary intoxication is not a job for a general practitioner. It requires a lawyer who understands:
- Pharmacology: How drugs metabolize and interact.
- DRE Procedures: How to cross-examine a certified officer and dismantle their 12-step conclusion.
- Virginia Procedural Law: How to properly notice an affirmative defense and argue jury instructions.
A specialized marijuana DUI lawyer or drug DUI specialist knows that DREs often mistake exhaustion or medical shock for cannabis impairment. They know that field sobriety tests are designed to be failed, even by sober people, let alone those who have been poisoned.
Conclusion
Can you get a DUI if you were drugged without knowing? The answer is a harsh “yes” regarding the arrest, but a hopeful “no” regarding the final conviction—if you handle the defense correctly.
Being drugged is a violation of your body. Being arrested for it is a violation of your liberty. You should not have to accept a permanent criminal record because you were the victim of a crime. The defense of involuntary intoxication exists to protect people in exactly your situation, but it is a complex tool that must be wielded with precision.
If you suspect you were drugged and are now facing charges, time is running out to preserve the evidence you need. Contact Scott C. Nolan today. We will review the toxicology, secure the footage, and build the aggressive defense necessary to tell your story and fight for your exoneration.
