An alarming DUI enforcement trend is prescription drug use resulting in DUI charges. Here is an actual scenario: A driver prescribed Venlafaxine for depression and Diazepam for anxiety, is pulled over by the police for speeding, fails field sobriety tests, and is charged with a DUI based upon prescription drug use. The driver then obtains a letter from a physician saying the prescribed drugs have been taken by the driver for months, if not years, and that they are not impairing or sedating in any way. Despite this evidence, the driver faces DUI charges.
DUI charges used to be based upon impairments related to alcohol consumption. However, it is now common to be retained by clients who blow 00/00 on the Lifeloc or other BAC breath testing equipment. If someone blows over .08 on a breath testing instrument then they are DUI regardless of the outcome of field sobriety tests. However, if a person blows under .08, the charge used to be dismissed unless other evidence of intoxication or impairment was demonstrated.
What is now occurring is that the police and prosecutors are turning to drug impairment prosecutions for DUI. For example, if a person says they ingested no alcohol but took prescription drugs sometime in the recent past, then any failure to perform field sobriety tests will likely be tied to the use of prescription drugs. A drug recognition expert (DRE) is called and asked to give an opinion that a person is impaired and it is unsafe for them to drive because of their medications. They then seal the deal by having the person consent to a blood draw, or if the person refuses to consent to a blood draw, by having a warrant issued for a blood draw. Once the blood draw comes back confirming that the suspect used medications then the suspect may well be convicted of a DUI. In other words, if you tell the police officer after you are stopped that you are taking medications and if you perform poorly on the field sobriety tests then it’s likely you’ll be charged with a DUI.
Many people take prescription medications the night before they drive. Those persons are still vulnerable to a DUI charge. Similarly, if marijuana is ingested several days ago and the blood test results are positive for a metabolite of marijuana (Carboxy-THC), it is likely that the DRE or a pharmacologist will determine that the person was impaired due to drugs.
So, what should people do to avoid a DUI prosecution based upon the use of prescription drugs? A driver who has taken prescription medications or has recently consumed marijuana should refuse to perform field sobriety tests. These tests are extremely difficult to perform under any circumstances. If you are not a yoga practitioner you will probably fail these tests. A driver should also refused to be interviewed by a DRE. A DUI suspect has the right to avoid self-incrimination. If they refuse to submit to an interview or tests performed by a DRE, then they are not showing consciousness of guilt. See State v. Stark, 157 Idaho 29, 333 P.3d 844 (Ct. App. 2013).
Obviously impaired persons should not be driving a motor vehicle. They are a danger to themselves and other persons and property. However, simply because a person takes prescription medications and fails field sobriety tests, which are designed to detect alcohol impairment, does not mean they should be deemed impaired and prosecuted for DUI.
My point is that it is best not to help the police and state prosecute you for a DUI simply because you are taking medications. You do not have to help them dig up the dirt on you by submitting to field sobriety tests or responding to DRE interviews. Sometimes, silence is golden. *
Thomas B. Dominick is a Cincinnati Reds fan and a DUI defense attorney.
*A driver does have to submit to BAC tests (but not field sobriety tests) if requested. Otherwise, you will lose your license for refusing to “blow” and the police may order a blood draw anyway.