A number of years ago, we represented a client in Greene County, Missouri charged with driving under the influence of his own prescriptions. He was being treated by a psychiatrist for a number of mental diseases and had been prescribed a laundry list of drugs for anxiety, depression and psychosis. A concerned citizen saw my client’s vehicle driving erratically down the roadway, almost striking several cars and buildings. When the police responded, they observed my client’s vehicle crossing the centerline of a four lane, busy roadway and almost striking several additional objects. After being pulled over, my client was administered a drug recognition evaluation (DRE) to determine if he might be impaired by drugs. As part of the DRE, my client was administered almost a dozen field sobriety tests and countless more physiological tests such as testing his vital signs. Needless to say, my client performed extremely poorly on all tests and was arrested for DWI. My client took a urine test, which subsequently revealed the presence of almost half a dozen potentially impairing drugs, all of which he had a valid prescription for. Nobody was more surprised than my client when he was charged with a DWI. He was even more surprised when the prosecuting attorney wanted him to take a conviction, lose his license for an extended period of time and, worse of all, do jail time! After a two day jury trial, my client was convicted for driving while intoxicated. The jury was extremely sympathetic to my client’s situation, but reasoned that “the law is the law,” and the jury must follow it. Fortunately for my client, the judge was also sympathetic. Instead of sending my client to jail, the judge gave him community service. The fact that my client avoided jail time was a small consolation to the significant attorneys’ fees he spent taking the case to trial and the time he lost dealing with the case.
Most of us know that if you drive under the influence of an illegal drug such as cocaine, you could be charged with DWI. Many of us know that if you take somebody else’s prescriptions and drive under the influence of those drugs, you could be charged with DWI. You may not have known, however, that you can receive a DWI for driving under the influence of your own prescription drugs. Certainly, my Greene County client didn’t know. Missouri’s DWI statute (RSMo. § 577.010) states that “a person commits the crime of ‘driving while intoxicated’ if he operates a motor vehicle while in an intoxicated or drugged condition.” There is no exception under Missouri law for driving while intoxicated on your own prescriptions. If the State can show that you were impaired and the impairment is consistent with the drugs found in your system, you could be convicted.
Since we all take potentially impairing prescription drugs from time-to-time (i.e. Vicodin, Xanax or Codeine), what are we supposed to do? We have to drive, right? Wrong. The best advice is to follow the recommendations of your doctor and pharmacist regarding “operating heavy machinery” (yes, that means a car) when you are taking your prescriptions. Since all drugs affect people differently, it is important for you to see how your prescriptions are going to affect you before driving. With that said, however, if you find yourself pulled over and think you might be impaired by prescriptions, there is important information you need to know. Be aware that you might not think you are under the influence of prescriptions. To be safe, though, if you are taking potentially impairing drugs and driving, you need to assume that you are impaired and follow these guidelines.
First of all, these cases can be very expensive to fight, but they are definitely beatable. As attorneys, we always say, “We don’t pick the facts.” What we mean by that is, by the time you come into my office with a DWI, I can’t change what you said or did. Fortunately, you do help pick the facts, but you have to know your rights before you get pulled over. Will you make incriminating statements? Will you take field sobriety or other tests? All of these things impact the chances of winning your case, and you need to be aware of them. So, what should you do if you are pulled over while possibly under the influence of a prescription drug?
1. When the police officer puts his lights and/or sirens on, pull over to the safest location you can find. Pull all the way off the roadway, put the vehicle in park, roll your window down and begin looking for your license and insurance.
2. When the police officer approaches your vehicle and asks for license and insurance, provide it. If the officer asks you any other questions, politely tell him “I do not want to answer any questions until I speak with an attorney.” Most people think that if they fully cooperate with the police by answering questions or taking field sobriety tests, there is less of a chance that they will be arrested. That is almost never true. It is the police officer’s job to investigate crimes, so the officer is documenting every word you speak and how you speak it (i.e. slurred, confused, mumbled or incoherent speech). Additionally, unless you are a criminal defense attorney who has handled dozens of these cases, you won’t know whether or not your statements hurt or help your case. So the best thing to do is to avoid answering questions. Obviously, at three in the morning, there is a slim chance of getting a hold of an attorney. That is not the point. The point is that you don’t make any statements. Besides, if you did get a hold of an attorney, you would be told not to make any statements.
3. When the officer asks you to get out of your vehicle, get out. Be aware that the officer is observing your balance. That is, the officer is watching how you get out of the car and how you walk. Are you swaying, stumbling, staggering or falling? Did you have to lean on your vehicle in order to walk? Did you have difficulty locating the handle on your door? Be aware of what the officer is looking for. We all walk differently, but the police are trained to look for certain things.
4. The officer is now going to ask you to submit to a series of field sobriety tests. When asked, politely tell the officer that “I do not wish to take any tests until I speak with my attorney.” Although the officer is likely to tell you that only guilty people wish to avoid taking field sobriety tests, simply do not respond to the officer’s badgering. Although it might feel good at the time to tell the officer what you are thinking, it usually doesn’t feel so good when you get the police report and see all of your statements (oftentimes taken out of context) listed as reasons why the officer believed you were intoxicated. If you are asked to take a portable breath test in the field (a little device not much bigger than a cell phone), again politely state that you do not wish to take any tests until you speak with an attorney. As of now, it is not a crime (and it cannot be used against you in court) to refuse to take a portable breath test. They are notoriously unreliable. That may change. If it does, we will send out an email update explaining the change(s). Until it does, simply ask to speak to an attorney before taking the test. Again, you aren’t going to be able to actually speak to an attorney, but if you were to speak with me, I would tell you not to participate in field sobriety tests.
5. The officer will place you under arrest. If it is any consolation, even if you would have taken all of the officer’s tests, 99 times out of 100, the officer was still going to arrest you. For those who took the tests, however, the driver provided a significant amount of evidence to the police that you did not.
6. Once you have been arrested, before asking you any potentially incriminating questions, the officer must read you the Miranda Warnings. You are all familiar with these Warnings (i.e. right to remain silent, right to an attorney, statements can and will be used against you, etc.). At this point, if the officer asks you any questions, tell the officer that you will not answer any questions until you have spoken with an attorney. Many of our clients’ cases would be incredible if the client hadn’t admitted to being under the influence of alcohol or drugs or made some sort of other insurmountable statement (i.e. “I can’t pass these tests,” “I had 20 shots tonight,” or “I shouldn’t be driving”). It is in your best legal interest to exercise your right to remain silent.
7. CHEMICAL TEST: At some point after arresting you, the officer is going to read you Missouri’s Implied Consent Warnings. That is, he is going to tell you that he has a reasonable belief that you are under the influence of alcohol or drugs and would like you to submit to a chemical test of your blood, breath and/or urine. He will tell you that if you refuse to take the test, you will immediately lose your license for one year. Although the decision on whether or not to take a chemical test is complicated to say the least (and would require an entire article to itself), I am going to assume for the purposes of this article that you have not drank any significant amount of alcohol, so you will almost certainly blow well below the legal limit for alcohol. NOTE: Most of my DWI drug clients blow under a .02 on the breath machine. Since you are going to blow under the legal limit for alcohol, take the test. By taking the test, you are accomplishing two very important things. First, you are demonstrating that you are not under the influence of alcohol. Second, you WILL NOT immediately lose your driver’s license. Currently (and if this changes, we will update you), in Missouri, you do not immediately lose your license for operating a motor vehicle while under the influence of drugs. You only immediately lose your license if you operate a motor vehicle with a BAC over the legal limit (.08). NOTE: If you are convicted for DWI-drugs in the criminal court, you would receive 8 points that would trigger a point suspension, but you would have to be convicted in the criminal court for that to happen. So, take the test.
If you blow under the legal limit, and the officer suspects that you might be under the influence of drugs (other than alcohol), the officer may ask you to submit to a second chemical test. Under Missouri law, the officer may require you to submit to up to two different tests. If you refuse either test, you would immediately lose your license for a year. Although it is the subject of debate among some attorneys, I would recommend you take the second test for a couple reasons. First, you don’t immediately lose you license even if impairing drugs (other than alcohol) are found in your system. Second, the vast majority of police departments ask you to submit to a notoriously unreliable urine test. Every lab technician I have ever encountered will admit that a urine test cannot accurately determine the amount of drugs in a person’s system. So, even if your urine test reveals the presence of potentially impairing drugs such as Vicodin or Xanax, it is impossible to determine how much Vicodin or Xanax were in your system. Without knowing the quantity of drugs in your system, it is impossible to determine if you were under the influence of the drug(s). Even the much more reliable blood test is subject to many problems. Unlike alcohol which affects most people in similar ways, drugs affect different people in different ways in different quantities. Therefore, even if your blood test reveals the presence of a specific quantity of drugs, it will be difficult for the State to prove that the quantity in your system would (beyond a reasonable doubt) produce an impairing effect.
8. Finally, if the officer believes you are under the influence of drugs, he may ask you to submit to a drug recognition evaluation (DRE). A DRE is a twelve step process that tests your balance, vital signs and asks you incriminating questions about the drugs (and dosage) you have taken. Again, simply tell the officer that you do not wish to take any tests until you have spoken with an attorney. If you were able to speak with me, I would tell you not to participate in the DRE. Even though, in my humble opinion, the DRE is a complete joke (i.e. a police officer has no business taking your blood pressure and pulse to determine if you are under the influence of drugs), a jury or judge may not agree. Therefore, do not participate in the DRE.
In conclusion, driving while under the influence of your own prescriptions is a crime in Missouri, and you should avoid doing it. However, it is extremely important that you know what to expect and your rights in the event you are stopped while under the influence of prescriptions. If you only remember one thing from this article, simply tell the officer that “I do not wish to do anything until I have spoken with an attorney.” Of course, if you have any questions about this article or are currently facing a DWI drug case, please contact our office immediately for a free and confidential consultation.