I did not have any alcohol or illegal drugs in my system when I was arrested. Can I be charged with DUI just for having legally prescribed drugs in my system?

In California, it is a crime to drive a vehicle while under the influence of any drug. (Vehicle Code Section 23152(f)https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH&sectionNum=23152.) This includes legally prescribed prescription drugs. It is not a defense that the drugs were prescribed by a licensed physician for a medical condition. However, to convict you of a crime, the prosecutor must do more than simply prove that you had prescription drugs in your system. The prosecutor has to prove that you were “under the influence” of the drugs at the time you drove. You were “under the influence” if your mental or physical abilities were so impaired that you were no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.

If the police believe you are driving under the influence, but do not find any evidence of alcohol or illegal drugs, they will often conclude that you are under the influence of prescription drugs (painkillers, amphetamines, sleep aides, SSRIs, antidepressants, medical marijuana, etc.). However, just because the police believe that you are under the influence of prescription drugs that does not mean that the prosecutor can prove beyond a reasonable doubt that you are guilty.

Prescription drug DUI cases are very different from alcohol DUI cases. In general, it is much more difficult for the prosecutor to get a conviction in prescription drug DUI cases than in alcohol DUI cases.

In California, there is no “legal limit” for prescription drugs like there is for alcohol. It is well established that most people are too impaired to drive safely with blood alcohol levels of 0.08% or higher.  Therefore, a person whose blood alcohol level is 0.08% or higher is presumed to be under the influence.  But for a substance other than alcohol, there is no specific amount that has been shown to render most people unsafe to drive.  Prescription drugs effect different people differently.  Two people could take the same amount of the same drug and one might be able to drive safely and one might not. Also, unlike alcohol, some prescription drugs can stay in a person's system long after the effects of the drugs have stopped. Therefore, a blood test showing the presence of prescription drugs does not prove whether the person is “under the influence” of prescription drugs.

If the police suspect you were driving under the influence of a prescription drug, they will probably ask you to do roadside balance and coordination tests, or “Field Sobriety Tests.”  (Note:  Unless you are on probation for a prior DUI, or other crime with the same requirement, you are not required to do these tests, and we recommend that you politely, but firmly, refuse to do them.)  The roadside tests were developed for use on people suspected of driving under the influence of alcohol. They were not designed to be used on people suspected of driving under the influence of prescription medications.

So, how can a prosecutor try to prove that you were “under the influence” of prescription drugs? Prosecutors primarily rely on “Drug Recognition Evaluation” (DRE) results.

A DRE is essentially a longer series of Field Sobriety Tests, done by a specially trained police officer. During the DRE, the police will also ask you a lot of questions and measure your pulse, your heartrate, and your pupil size.  The DRE is based on junk science and has never been shown to have scientific validity.  (Read about the bias and other problems with DRE results)  Yet, prosecutors continue to rely on the DRE to try to convict people of driving under the influence of prescription drugs.  A skilled DUI lawyer can show how these tests are flawed.

If you are arrested for a prescription drug DUI in California, you are required to give a blood sample for testing. (If you refuse to give a blood sample, you can lose your driver's license for at least one year, even if you are found not guilty of DUI.) However, unless you are on probation for a prior DUI, or other crime with the same requirement, you are not required to participate in the DRE or do any Field Sobriety Tests, and we recommend that you politely, but firmly, decline to participate.  And, regardless of whether you are on probation or not, we recommend that you always politely, but firmly, decline to answer any questions asked by the police.  And we mean any questions.  Hand the police your license, registration, and proof of insurance and submit to a blood test, if requested.  But keep your lips sealed.  You only need to know one word: “Lawyer.”

In addition to the DRE, the prosecutors rely on the following evidence to prove that you were “under the influence” of prescription drugs:

• Any unusual or unsafe driving (swerving, speeding, failing to stop, etc.);
• The police officer's observations about your appearance (slurred speech, red/watery eyes, dilated pupils, unsteady gait, etc.);
• Your performance on Field Sobriety Tests; (You are not required to do these tests)
• Blood test results; and
• ANYTHING you say to the police. (Read here about why you should not speak with the police)

As you can see, prescription drug DUI cases are very different from alcohol DUI cases. Just because you had prescription drugs in your system when you were driving does not mean that your case is hopeless. If you have been charged with a prescription drug DUI, a skilled DUI lawyer can review the evidence collected by the police and can put up a solid defense to your case. We have won many prescription drug DUI cases and take pride in doing so.

Don't give up without a fight. Give us a call today and let us fight for you.