This is Part One in a series of blog posts dedicated to the rise in prosecution for DUI of lawfully prescribed medication.
You’re suffering from depression and anxiety. You go to the doctor and are prescribed medication to help treat your symptoms. You take the medication exactly as prescribed, taking only the dose your doctor told you to. You’re driving home from work one night and are pulled over. The officer tells you he saw you swerve and asks you to get out of the car and perform some field sobriety tests (SFSTs). You do, because you have nothing to worry about – you haven’t been drinking or taking any illegal drugs. The officer decides he saw signs of impairment and arrests you for suspicion of DUI. You cooperate and let him take a blood sample, but you don’t expect to ever be charged with anything. After all, you’ve done nothing wrong, right? Wrong. Much to your surprise, a few weeks later you receive a summons in the mail, charging you with DUI of a controlled substance. How is this possible? You had no alcohol, no drugs, just the medication your doctor prescribed you. How could you possibly be charged with DUI?
There’s a disturbing trend going on in Pennsylvania. Since the breath test challenges shed light on the deficiencies of Breathalyzers, the majority of police departments have moved to blood testing. What we as defense attorneys are now seeing as a result is a sharp rise in DUI charges when the person has nothing but lawfully prescribed medication in their system.
My theory for why this is is that before, the Breathalyzers could only test for alcohol; if it came back that the person was drinking or wasn’t above the legal limit, they let the person go. Now, the police can use the blood to test for more than just alcohol; they almost always will test it for drugs as well. Because of this, they’re able to see if a person has anything at all in their system, including prescription drugs. Where they wouldn’t have been able to charge a person because the Breathalyzer didn’t show alcohol, they can now charge the person because PA DUI law allows for charges against people who take prescription or over-the-counter medication.
Under section 3802(d) of the Motor Vehicle Code, a person can be charged with DUI of a controlled substance. Section 3802(d)(1) is the per se subsection. What this means is that if a person has any amount of a Schedule I controlled substance in their system, they are guilty of DUI; it makes no difference is the person is impaired by the substance. Just its presence is enough. Schedule I controlled substances include the following:
Schedule II and III drugs also fall under this subsection. They are treated a little differently, though. If a person has a Schedule II or III drug in their system and they do not have a valid prescription for that drug, then like Schedule I drugs it is enough that the drug is in their system; it is not necessary to show impairment. However, if the person does have a valid prescription, the state must prove that the drug was in the person’s system and they were impaired by it. Many of the drugs prescribed for chronic pain and ADD are Schedule II substances. Examples of Schedule II drugs are:
• Oxycodone (OxyContin)
Schedule III drugs have a lower potential for abuse than Schedule I and II drugs. They include:
• Tylenol with Codeine
• Anabolic steroids
Section 3802(d)(2) states that a person is guilty of DUI if they are under the influence of a drug or combination of drugs so that their ability to safely drive is impaired. In other words, if you have a Schedule IV or V controlled substance in your system, the DA has to prove that it’s present in your blood AND that you’re impaired by it. Examples of Schedule IV and V controlled substances are:
• Cough medicines like Robitussin
Essentially, what all this means is that even if you are properly taking lawfully prescribed medication, you may still be charged with a DUI. Even if you’ve only taken certain over-the-counter medications, you may still be charged with a DUI. The trend in Pennsylvania is to charge drivers with DUI of these drugs even when there is no or minimal alcohol in the person’s system. It makes counties a lot of money. The key word is “impairment” which is often completely subjective. Many local police departments do not have (working) dash cam systems, so convictions are often based on their subjective opinion.
In Part Two of the series, I’ll discuss a case I recently handled in which a young woman was charged under this section after being pulled over for a faulty headlight. The only thing in her system was antidepressants and migraine medication. Stay tuned!