I receive many calls from persons arrested for DUI by prescription drugs who want to use as their defense the fact that they were taking the dosage of medication prescribed by their physician. Today, prescription and over-the-counter drugs are a normal part of daily life for many people—many of whom are surprised to hear that taking a legally prescribed medication can still lead to a DUI conviction.
Many prescription and over-the-counter drugs may impair a person’s ability to operate a motor vehicle safely, especially if used in combination with other medications or alcohol. Accordingly, people must be particularly careful when driving after consuming their medication.
If a person is arrested for DUI while taking only legally prescribed medications, the legality of the prescription is not relevant to the DUI charge. How or why the defendant became impaired is not an element of the crime of DUI; the focus is on the fact one is simply driving or in physical control of a motor vehicle while under the influence of an intoxicant or combination of intoxicants. The reason for impairment is irrelevant. The elements of the crime and the penalties for driving under the influence of legally prescribed drugs are the exact same as those for driving under the influence of alcohol or illegal intoxicants. A legal prescription is certainly relevant to prevent separate charges for the mere possession of drugs, but it is not a defense to the act of driving while impaired.
Moreover, a defense of being involuntarily intoxicated may not be available to a person who is impaired from legally prescribed medication. Being unaware of the side effects is not the same thing as being involuntarily intoxicated. Involuntary intoxication applies when a person unknowingly consumes an intoxicant. Similarly, if the prescription was obtained legally from a doctor and through a pharmacy, then the required, extensive warnings about possible side effects may negatively affect a claim of ignorance or mistake.
Nonetheless, defenses to driving under the influence of prescribed medication may exist. Not only may there be constitutional defenses, but also defenses relating to the type and dosage of medication. All of the lawyers at Oberman & Rice have undergone extensive Drug Evaluation and Classification (DEC) training. Mr. Oberman has even taught judges and lawyers in both the United States and Canada about the inherent deficiencies of officers using Drug Recognition Evaluation (DRE) procedures when making DUI arrests of persons using prescribed medication or other illegal drugs.
2 Responses
What are the “steps” one must follow to protect their rights if pulled over by an officer of the law in Tennessee..if they are taking prescribed meds and if they are NOT under the influence of that medication. Should they say they are on meds, or choose to be silent, refuse to answer? Should they TAKE the breath test if they have not been drinking? Basically please give an senerio of what a person will be asked…and how SHOULD behave/answer, and how to properly answer questions, and how NOT bring to bring legal meds up in the first place.
I am currently under the impression that one should not answer any question other than the basic car stop with/out bringing up legal meds should the officer decide to ask about prescription use…and at time just saying that the officer might want to contact my Dr. about any meds perscribed. Does this make sense? Thanks in advance for your opinions!
Tony,
I will attempt to provide you with some general information based on current Tennessee DUI and related criminal defense law with the understanding that each case/situation may differ significantly enough to substantially change my legal advice. Moreover, the law is in a constant state of flux, so today’s correct answer may be incorrect tomorrow. If you’d like specific information, you should contact me by telephone at 865-249-7200.
That being said, I will tell you that the best course of action is to always be polite when approached by an officer. You are likely obligated to identify yourself by displaying your driver’s license if you are in fact driving. If you are not driving, there is some legal authority that you have the right to walk away from an officer unless you are ordered to stop Cite** Again, the rule is based on the specific facts of your situation.
In reference to your inquiry about DUI by drugs (prescribed or not), I can advise you that there is a complex protocol that can be implemented by the officer to make that determination (Drug Recognition Evaluation – DRE), but your voluntary consent is required for most of the protocol. Remember that you may be convicted of DUI even if the medication is prescribed to you. If you are being specifically asked if you are taking any medication, the officer likely suspects you are under the influence and is fishing for information to support his suspicion. In that case, your best chance of avoiding arrest or at least conviction may be to politely decline to answer any questions without first consulting your lawyer. You are not obligated to submit to any field sobriety tests such as the horizontal gaze nystagmus (HGN) test, the Walk and Turn Test or the One leg Stand test, or any other field test (meaning not a chemical test of a bodily substance such as breath, blood or urine).
Before an officer may legally request that you submit to a chemical test, he must first be able to establish “reasonable grounds” or “probable cause” that you have violated the law. The more information you provide, the more likely it is that you will assist the officer in reaching that threshold. Once the officer has sufficient proof that you are driving under the influence of alcohol or drugs, or both, it is the officers choice about which tests to request from you. Keep in mind the officer may request more than one test. You should also be aware that in some circumstances, you may be committing a separate crime if you refuse a chemical test requested by the officer. If you fall in that category (too complex to describe here) I am obligated to advise you that you should not commit a crime. Finally, keep in mind that an officer always has the right to request a search warrant to obtain a bodily substance – even forcibly if necessary.
I regret I can’t provide you with an exact script to recite to an officer. There are simply too many variables to give you an accurate answer. I hope this foregoing information will help you better understand your legal rights. Remember, though, that the best way to avoid an arrest for DUI is not to consume any medication, drug or alcohol that impairs your ability to operate your motor vehicle. Consult with both your doctor and pharmacist before taking medication and driving.