Drug-Related DUIs Attributed to Prescription Medication

Interviewer: How would a prescription medication case be handled?  Let’s say someone’s been taking a prescription medication and they get pulled over.  First of all, how do the police officers know that they’re impaired?  Can you tell us some more about some of those cases?

There Is No Standard Level of Prescription Medication Impairment

Matthew Nebeker: I always like these prescription cases as far as defending them.  The reason why is because there’s not a law that says if any of this prescription is in your system or you have certain level of this prescription in your system, you’re DUI, the same as with alcohol.  The law says 0.08 or higher and you’re violating the law.  They don’t have that proof.  They don’t have that standard in the prescription cases.

These Cases Are More Difficult for the Prosecution

They’re tougher cases for the prosecutors.  The reason why is because, I mentioned earlier, they have to show that the person was under the influence of that drug, of that prescription. They have to show they were incapable of safely operating the vehicle.

The way these usually go is we all get distracted in our driving and we might be using with our phone or our radio or talking to the kids or something like that.  We weave in our lane a little bit or we might be in the fast lane going a little bit slow.  Someone calls the person in as a possible DUI or the officer sees this kind of aberrant driving pattern and so they’ll pull them over.

In the Initial Police Stop, the Officers Will Investigate in the Same Manner as with Impairment Attributed to Alcohol

At first glance, the officer won’t smell the odor of alcohol.  They’ll ask him, “Well, are you taking any kind of prescriptions?”  Most people, they don’t think there’s anything wrong with them taking a prescription as their doctor prescribed.  They’ll say, “Oh, I have this, this and this.”  The officer will then say, “Well, when did you last take them?”  The person will say, “Well, I took them this morning,” or “I took them last night.”  Then the officer will say, “Well, I want to make sure you’re safe to drive.  Let me see.  Step out of the car and come back and have you do some tests.”

They’ll run the driver through the series of the field sobriety test.  They’ll check their eyes.  They’ll check to see if there’s any kind of physical conditions.  They will have them do the walk, turn and the one leg stand.  Then a lot of times they’ll arrest them based on the field sobriety test.

If you go and look at the basis and you look at the studies behind the field sobriety test, the validation studies they call them. Even in the DUI, the NHTSA Training Manual says that the field sobriety test is not to be used as an aid to determine impairment.

Roadside tests are not reliable indicators of someone’s ability to drive a car, but they arrest them based on their failure of the field sobriety test.  Then they’ll have them draw their blood and they’ll analyze the blood and we’ll get to see what’s there eventually.

The way a lot of these work out is it all really comes down to the driving pattern.  Because if we look at what’s in their system, you can’t tell if someone’s impaired by what’s in their system.  The expert analysts from the lab cannot come into court and say, “Well, this person was under the influence of Ambien or Xanax.”  They can’t just do it.  It’s impossible, scientifically impossible.

The Defense Attorney Refutes the Officer’s Claim of Impairment Based Only on the Field Sobriety Test Performance

The only thing they can do is say is well what was in the blood?  Then the police officer could say, “I put them through the field sobriety test and they failed those,” but on cross-examination you can hold up the officer’s training manual and say, “Well, the field sobriety tests aren’t an indicator of impairment.  Field sobriety tests are to give an indicator of someone who’s 0.08 or higher.”

In Drug-Related DUIs, the Prosecution May Rely on Testimony about the Driver’s Unsafe Driving Pattern

According to science, the tests are not good indicators of impairment.  The only thing that the prosecutor can really rely on is the driving pattern and how unsafe it was purported to be.  Now, I currently have a client that was driving down the road.  He hit one of the concrete barriers on one of the barriers for the dividing lanes.

In These Cases, Video Can Be Helpful to the Defense

We’re still working on that one.  It’s going to come down to was there a video and did that video show lane weaving or running other people off the road or kind of endangering other people?  If it just shows little minor things, like everyone does every now and then get distracted for whatever reason, then we have a pretty good case. This is because they can’t prove that my client was under the influence of anything.

The way that most of these play out is if the driving pattern is halfway decent, most of the prosecutors will dismiss if they have a valid prescription.  I’ve gotten to the point where on a first and initial court appearance I walk in and I have my client bring their prescriptions.  I tell the prosecutor, “They have a lawful prescription.  They didn’t hurt anyone.  They weren’t involved in an accident.  There was some minor little thing that they did.  You’ve got a tough case ahead of you.”  Most of the time, they’ll dismiss it.  They might drop it down to a careless driving or reckless driving.

Case History: Defending Allegations of Unsafe Driving

I have a case the other day.  It was the same scenario.  Someone called a possible situation about this young girl and her boyfriend in the car.  They were listening to the radio and having a good time, not paying attention to the road.  Someone called her in.  The trooper followed her for a minute.

She was doing really well in her driving because he turned on his video and was driving behind her.  Her driving was not unsafe and she responded to the traffic signals.  When the light turned green, she went ahead at appropriate speed, stayed in her lane.

The minute the trooper turned on the old headlights, the emergency lights, she swerves over into the other lane.  It’s as if she became scared and panicked and she didn’t know what to do, so she swerved.  That’s the reason he said they stopped her is she swerved. He has her exit the vehicle and administers the field sobriety test.

Defending a Client against Charges Stemming from an Officer That Drew the Wrong Conclusions

This is kind of a sad thing.  This officer, he was an older officer.  He was what they call a drug recognition expert, meaning he had had additional training in detecting people who are under the influence of drugs.  This young lady had some problems with her teeth, and they call it meth mouth.

Someone who uses methamphetamine a lot, their teeth start to rot and deteriorate.  He thought she was a meth user, and of course she failed the field sobriety test.  They all do.  He took her in and drew her blood.  She had a couple of prescriptions in her system, not methamphetamine and no other street drugs.

That case was dismissed because there was no driving pattern.  She didn’t have any illegal street drugs or drugs of abuse in her system and the prosecutor couldn’t prove it.  I like those prescription cases.

What Does the Drug Recognition Expert (DRE) Look for When Checking for Impairment?

Interviewer: Moving on to the non-prescription or the illegal drugs, you mentioned that there’s a drug recognition expert.  What signs are they looking for when they’re behind someone and then they pull them over?

A DRE Is Trained to Check for Signs of Drug Impairment

Matthew Nebeker: The DRE may perform the standard field sobriety test and see some signs or indications that somebody is under in the influence.  What they do, and this is when things get a little bit tougher for their defense—their training manual says that the roadside tests are not good indicators of someone’s ability to safely operate a vehicle.

So, they take them in.  They arrest them and they take them back to the police station where they perform a drug evaluation.  They do all kinds of extra tests.  They do not only the roadside tests but they go into extra tests. An example of one is what’s called the Romberg Test.  They’re looking for eyelid tremors and they’re checking their pulse.  They are checking their flesh, looking for discoloration in their flesh, whether it’s cold or warm.

A drug recognition expert just performs extra types of field sobriety tests back at the station. The DRE does a more thorough evaluation to see if the individual is under the influence.  They try and classify and see what kind of stimulant there under the influence.  One of the reasons they did that is so they have more information about the individual.  They have that evaluation that can be used in court.

The DRE Can Request a Warrant to Compel an Individual to Submit to a Blood Draw

If they need to, if the person refuses to give their blood, they can use those additional procedures, that additional evaluation to request a warrant to do a blood draw.

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