The legal perils of driving under the influence of prescription meds or marijuana
By Scaringi & Scaringi P.C.
When people hear “driving under the influence,” their first thought is alcohol. But an increasing number of DUI cases involve drivers under the influence of legal prescription medications, as well as marijuana.
And because marijuana remains illegal and unapproved for medical treatment in Pennsylvania, the latter is a significant legal problem for drivers who test positive for marijuana or its metabolite, THC.
The legal problems of driving while taking prescription medications
Most of our clients facing DUI charges for driving under the influence of their prescription medications are quite shocked to be facing the same legal trouble as a result of driving with a lawfully obtained prescription medication in their system. Driving under the influence of a controlled substance carries the same penalties as driving under the influence of alcohol with a BAC of .16 or above.
If convicted, a first offense DUI-controlled substance offender is looking at an ungraded misdemeanor, a one-year driver’s license suspension, up to six months in jail and as much as a $5,000 fine. Alcohol highway safety school and a CRN evaluation (to determine possible drug or alcohol abuse) are additional requirements.
All for driving under the influence of a prescription medication that someone might have been taking for years and to which their system has built up a tolerance. But if the defendant is tested and found with a controlled substance in his or her system – and the driver also has been deemed incapable of safe driving – that is precisely the legal peril the driver would face.
Of course, all of this must be proven in court. Most legally prescribed medications are considered Schedule II controlled substances in Pennsylvania. In cases involving legally prescribed Schedule II medications, a conviction depends on a two-part test by the prosecution.
The blood tests conducted at a state-approved and certified lab must show appropriate threshold levels of the drug in the driver’s system.
Secondly, the police and the prosecution must prove that the driver who tests positive for the medication was impaired to the point that he or she was incapable of safe driving. Only then is a driver charged with a DUI-controlled substance Schedule II offense and in jeopardy of being convicted.
Defending clients against DUI charges related to prescription meds
In developing a defense strategy, we often challenge the lab results that show the medication in the driver’s system. These tests must be conducted in a lab that is approved and certified by the state. The prosecution also must be able to demonstrate an uninterrupted chain of custody involving the blood sample and the test results throughout the handling of the case.
This means we will examine the prosecution’s handling of the sample and test results from the moment the needle is in your arm until the test results are presented in court. If there is any break in the chain of custody, we will aggressively challenge those test results.
Among the most common prescription medications that can lead to DUI-controlled substance Schedule II charges are pain medications such as codeine, hydrocodone and oxycodone, as well as attention deficit hyperactivity disorder (ADHD) prescriptions involving amphetamines and related drugs. We often require our own medical and drug experts to testify about the effects/impairment of these medications at various levels in the driver’s system.
The most important challenge to the prosecution’s case as it relates to Schedule II controlled substances is whether the prosecution can prove that my client was not capable of safely driving. In the case of an accident, law enforcement often does not arrive on the scene until after the fact. When the officer on scene never witnessed my client driving, then witness testimony, accident reconstructions, and other evidence can be used to show the driver in a more favorable – and safer – light.
If you are injured in an accident, even if it isn’t your fault, blood tests for controlled substances are routine at hospitals. However, the mere fact that there is a traffic accident is not proof that someone was incapable of safe driving.
ARD for first-time DUI-controlled substance offenders
First-time DUI-controlled substance Schedule II offenders with no prior criminal history are often eligible for Accelerated Rehabilitative Disposition, or ARD.
Why is ARD so advantageous? It is a pre-adjudicated disposition. Not a conviction. It is available to first-time offenders with some exceptions. For example, some jurisdictions might not allow ARD in cases where a vehicular crash accompanied the DUI charge or in situations where a child was in the vehicle. Some jurisdictions have a blood alcohol content cutoff; for example ARD might only be an option for DUI drivers with a BAC of .35 or below.
Not only does ARD spare the client a conviction, it saves him the cost of a trial. There is a charge for enrolling in ARD, typically between $1,500 and $3,000, depending upon the county. But in a DUI case, it is money well spent, because when you successfully complete ARD, your criminal record of the DUI charge will be expunged. Additionally, the license suspension for an ARD controlled substance DUI is only 60 days, compared to the 1 year suspension if convicted. Acceptance into the ARD program is at the discretion of the district attorney.
Pennsylvania’s stiffer prosecution of drivers under the influence of marijuana
With all the news about some states making medical marijuana legal and even approving marijuana for recreational use, one might think the consequences for driving under the influence of marijuana in Pennsylvania would be less than driving under the influence of oxycodone, or cocaine.
Not true. The consequences are the same, but the burden on the prosecution is lower.
In Pennsylvania, which has not relaxed its enforcement of drug laws related to marijuana nor moved to legalize medical marijuana, the drug remains a Schedule I controlled substance.
This means that if you are driving and found to have threshold amounts of marijuana in your system based on a certified lab test, it is an automatic violation of driving under the influence of controlled substances.
In marijuana cases, the prosecution does not have to prove that a driver was impaired or incapable of safe driving. The prosecution only needs to prove that an individual was driving with marijuana in his system, or with its chemical metabolite, THC, in his blood.
The mere fact that marijuana or THC is in the driver’s system, even at lower levels, is enough for a conviction in a DUI-controlled substance Schedule I case. And be warned, marijuana’s metabolites can linger in the body for weeks after ingestion and may show up in blood tests. As a result, there is often less room for legal maneuvering in marijuana cases.
In a lot of cases a police officer might stop a driver for a traffic violation, then notice the signature scent of marijuana. This may prompt the officer to request consent to search the vehicle. The Pennsylvania Supreme Court just issued a decision that police no longer need a warrant to search a vehicle if there is probable cause to search. No exigent circumstances are necessary. This ruling helps law enforcement arrest and prosecute individuals in the possession of illegal drugs – but it can be a slippery slope down the path to eliminating personal privacy and freedom in the name of expediency for law enforcement.
In our defense strategy, we can always attack the officer’s probable cause for stopping the driver in the first place. Of course, we also attack the probable cause for any vehicle search.
The bottom line is simple – it is not a good idea to drive while smoking or having recently smoked marijuana in Pennsylvania. The legal price is too high, and the prosecutorial burden is too low.
A legal prescription for drivers
If you’re taking prescription medications, our advice is simple: Take only the recommended amounts. Don’t drive until you know if there are any side effects that could impair your ability to drive safely. Always err on the side of caution.
Also, do not keep your pill bottles in your vehicle. If you are in an accident, the police will search your car and find your prescription medications. This alone could amount to probable cause to request a blood test.
As a general rule, potent drugs and driving don’t mix, even when those drugs are legally prescribed by a doctor and are being taken according to dose.