DUI Defense Lawyer: Prescription Drug Use, plus Driving Can Equal a DUI Charge

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.

Client Found Not Guilty in Torch 2 Hate Crime Case.

On February 13, 2015, a federal court jury found that Jon Henery was not guilty of a hate crime attack at the Torch 2 club located in Boise.  Although witnesses said that Henery and his co-defendant repeatedly uttered racial slurs at the alleged victim, the jury, after a two week trial, concluded that a hate crime did not occur.  This was the first hate crime case ever prosecuted by the federal government in Idaho.  Defense attorney Thomas Dominick represented Henery and said after the case that the federal case should not have been brought.  “Lewis was beaten in a bar fight,” he said.  “We’re grateful the jury was able to see through the mud thrown in this case.”  Dominick said “It should have been a state (battery) case.” 

At trial, Henery’s attorney produced evidence that Henery was not a racist and did not take action until he believed that his co-defendant and friend was out numbered two to one and needed his defense.  Only then did Henery become involved in the altercation.

The federal government decided to prosecute Henery under the federal hate crime statute because the sentence that could have been imposed was up to 10 years, longer than a state case.  Henery and his co-defendant were seen as trouble makers and the federal government wanted to send them away for a long time. 

 The allegations were investigated by the FBI, the local US Attorney’s Office, Ada County Prosecutors, Boise Police, and the gang unit. 

 An issue raised by defense counsel for Henery early on was the constitutionality of the Federal Hate Crimes Statute.  The argument was made that the federal law was unconstitutional in violation of the Thirteenth Amendment to the United States Constitution.  US District Judge B. Lynn Winmill rejected this argument and denied the motion to dismiss saying that case law upheld the constitutionality of the statute.  The Thirteenth Amendment prohibits slavery or involuntary servitude.  Dominick argued that states should prosecute these types of cases, not the federal government.

How to Hire a Lawyer

If you are charged with a crime, facing a divorce, or embroiled in another legal dispute, it is important that you choose the right  lawyer.  If you are charged with a crime, it is likely that you will be inundated with solicitation letters from lawyers.  Some lawyers read the arrest records of persons charged with crimes and send them letters they call “advertisements.”  They have to call them advertisements in order to avoid sanctions from the Idaho State Bar’s Disciplinary Committee.  These lawyers offer extremely low rates and flat fees.  However, you get what you pay for.  They rely upon volume and may simply run you through the system, and may treat your case like a number and not a real person.

Other lawyers advertise on the internet, purchasing large ads.  Lawyers can receive great legal  placement for their advertisements if they pay Google large sums of money each month.  The fact that a lawyer advertises on Google, in the Yellow pages, or on radio or television does not make them a good lawyer.  If they received sufficient references because of their success, they would not need to advertise as much.

If you want to find a good lawyer, the best person to ask is another lawyer.  This work has been done for you by a rating agency called Martindale-Hubbell.  Martindale-Hubbell rates lawyers.  They conduct confidential interviews with other lawyers and judges.  They ask lawyers and judges to rate a particular attorney.  That attorney then receives a rating based upon these confidential interviews with other judges and lawyers who are in the best position to know who is good and who is not.  A lawyer must have at least a “C” rating and be very ethical in order to be rated by Martindale-Hubbell.  A “B” rating means that a lawyer is good.  An “AV-Preeminent” rating shows that a lawyer is a preeminent lawyer, in the top 10% of all lawyers in Idaho, and has the highest ethical standards.

I am an AV-Preeminent rated attorney.  It is easier to make deals in all areas of law from divorce, personal injury, water disputes, business matters and other litigation matters if the attorney is well respected.  The reputation earned through a Martindale-Hubbell rating usually comes because the lawyer is seen as well prepared, thorough, knowledgeable about the law, and is able to present the client’s case in the best possible light.

Other lawyers may charge what they initially promise to be a flat fee, but you will end up paying more money if they have to do any work, such as file a motion or appear at trial. Many have little trial experience.

The next time you are considering hiring a lawyer, please consult with someone who knows lawyers, another lawyer or a judge.  Please consult Martindale-Hubbell or Lawyers.com for lawyer/judge ratings of Idaho attorneys.

Criminal Defense

Mr. Dominick has won his last 11 jury trials and his clients have been acquitted in those cases.  In one such case, Mr. Dominick’s client was videotaped stealing items and the client then signed a confession.  However, the jury acquitted the defendant. 

Mr. Dominick has been involved in many extremely large and complex federal conspiracy cases involving drugs, alien smuggling, etc.  There is no matter too small or large for Dominick Law Offices to handle in the criminal defense arena.