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Posts Tagged ‘probable cause’

Legal Prescription Drugs And DUIs

Thursday, May 26th, 2011

Cops are underpaid and overworked, and while it is true that these are the guys that show up every time you dial 911, the relatively recent concentration of DUI enforcement has resulted in COPS bending the rules to bring in scores of drivers just barely over the limit but not at all impaired. In short the law says that anything over a blood alcohol level of .080 mg/dl is a “per se” DUI; however the other arm of this law is that anyone who is “impaired” by ANY amount of drugs or alcohol can be cited as well. This means if you are at a BAC of .010 or trace alcohol, that you can be cited for DUI if you don’t pass the stupid, unproven, “balance” tests that the police administer on the roadside. Let’s be very clear here before I go on; if you are pulled over for say speeding, and the cop says “have you had any drugs or alcohol today?” And your answer is, “well, just what the doctor prescribed, and I only had a half of the 7.5 lortab for my tooth extraction,” and you are unable to stand on one foot for thirty (30) seconds while looking at your uplifted foot, all with traffic zooming by, or are unable to walk 18 heel to toe steps without missing a single heel to toe touch by more than half an inch, or stepping off line once; it is more likely than not that you will be receiving a DUI. WAIT! WHAT!?

Understanding DUI law is not necessarily easy, but if you take a few minutes, it is not unreasonably difficult, although by the time we are finished you will be blown away. The law wants to cover everything right? So of course, we want to protect the public from obviously impaired drivers strung out on say oxycontin, or sleeping pills – no one disagrees with that. But a little is a lot in DUI law. The law states that anyone who has even a trace amount of a perfectly legal, prescribed, taken as directed drug, is guilty of 41-6a-517 DUI, called a “metabolite DUI” and impairment is not necessary for this charge! WHAT?

That’s right. In Utah, if you take your medication as directed, and have your blood tested, lets say as a result of an accident that isn’t your fault, if that blood comes back as positive for even a metabolite of any drug, that can be used against you as a DUI. Now, to be sure, the law makes a provision for what is called a “rebuttable presumption” or affirmative defense to the charge by showing a prescription for the drug, or that the drug was ingested by mistake, but that means thousands of dollars in legal fees, and frankly, very, very attorneys will be able to explain to you what a rebuttable presumption is. REMEMBER! Your ability to drive or your impairment is based on your ability to perform roadside balance tests that have NEVER been proven to distinguish between impaired and unimpaired drivers (because they are total bullsh*t); no one ever tested you on your ability to balance on one leg before you took your driving test, and many people have poor balance, especially when a police officer has them on the side of the road with oncoming traffic! Don’t get me wrong, I don’t have any love for drivers who are loopy, but judging impairment AFTER finding out about normal drug use from the driver is foul play. There are people who are impaired from prescription drugs to be sure; but the vast majority of cases I see are either mistakes, new prescriptions or dosages taken as directed, or sheer sleepiness, which everyone is guilty of now a days. Worse still, since a prosecutor defines which statute a case is filed under, most of the time, the driver doesn’t have the defense of a legal prescription taken as directed! Rather, under 41-6a-502 or the normal run of the mill DUI statute, the state is going down the road of impairment; and since impairment is judged not on how much or little you have in your system, but how you performed on roadside sobriety tests – the prosecution has a leg up to begin with. This is PATENTLY UNFAIR. In cases where there is no discernible and I mean visible impairment, it is complete BULL to prosecute ANYONE who is taking their medication as directed
and isn’t visibly impaired. don’t forget, these people, even mormons, need Ignition Interlock Devices installed in any car they own or operate, as a result of the DMV civil rules; so even if they don’t drink, if they are convicted or plead guilty, they need an interlock!

In practice the way most cases go is something like this; the state charges, the driver relents and pleads to an impaired driving. Now they are alcohol restricted as a result of the plea, but they don’t necessarily know it. They are then stopped say a year later, and they blow say .010 from a single beer they had earlier with dinner, five hours ago. And now they are charged with an alcohol restricted driver violation which is the same class as a DUI, a class B, and carries the same penalties as a DUI, BUT now their license is suspended for one (1) year and they have a THREE (3) year interlock requirement, which they were trying to avoid before by pleading to the impired driving! Talk about your catch-22′s!

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