When it comes to the operation of a motor vehicle while impaired where the sole intoxicant is prescription medication, the waters quickly get murky.
The opioid epidemic has been a catalyst for several changes to criminal statutes in nearly every state. New laws setting harsh penalties for doctors or pharmacies complicit in running “pill mills,” or individuals with valid prescriptions who turn around and sell their medications for top dollar have become ubiquitous as legislatures seek ways to stem the flow of Percocet, Vicodin, Oxycontin, Fentanyl and several other powerful prescription medications. However, there is one area of criminal law which has grappled unsuccessfully with how to address the usage of these drugs and their potential implications on a person’s actions. When it comes to the operation of a motor vehicle while impaired where the sole intoxicant is prescription medication, the waters quickly get murky. Despite the ability to scientifically identify both the substances and their respective levels in a person’s body, the law remains vague on how to determine whether the prohibition against impaired driving was actually violated.
The obvious question, left completely unanswered by the New York legislature, is how to tell whether a person is impaired by drugs while operating a vehicle. By their very nature, prescription drugs are legal when appropriately taken and are, in many cases, necessary to allow a person to function. Without certain opioid pain medication, muscle relaxers, or mood stabilizers, some individuals have difficulty with everyday activities. But many of these medications have physiological effects, slow down reaction times, dull reflexes and cause fatigue, all of which could negatively influence a person’s ability to reasonably and safely operate a motor vehicle. When, then, can it be said that a person has become impaired by the use of these drugs?
In New York, the statutes that criminalize intoxicated driving are found in the Vehicle and Traffic Law (VTL), specifically in §1192. In that section, subsections (1)-(3) very clearly define when a person can be arrested for drunk driving, and how to determine which alcohol-related statute applies. Notably, the law specifically states that when any individual has a blood alcohol content of .08 or higher, they are considered intoxicated for the purposes of a criminal prosecution. There is no such delineation or bright-line limit when the charges involve prescription drugs.
To further complicate the issue, some people are afflicted with serious injuries or conditions and require long-term medication simply to get through the day. The body builds up tolerances to medications over time, and consequently there are individuals who require a significantly higher dosage of a drug to get the intended effect. There are also issues when multiple drugs are present in an individual’s system. Prosecutors are not pharmacists, and the pharmacokinetic effects of multiple drug interactions are often complex and difficult to predict. Additionally, many drugs do not present with the visible signs of intoxication that are commonly associated with alcohol use (red watery eyes, slurred speech, unsteady gait, etc.) and drugs emit no discernible odor.
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Our firm recently tried a case in California where our client, who had been taking prescribed medications, was charged with murder after a horrific motor vehicle accident resulted in the fatality of a young girl. The trial revolved around the issue of impairment as California, similar to New York, does not clearly define when an individual is impaired by prescription drugs under the law. Contextual arguments made based on witness observations as well as our client’s statements took center stage after the State’s forensic crime laboratory expert testified that looking solely at the levels of medications in person’s system could never lead to a scientific conclusion regarding impairment. In the absence of a credible expert opinion on the issue of impairment, the jury was left with no scientific standard by which to measure the facts in order to determine whether our client was actually impaired.
The unfortunate truth is that far too often the decision on whether to charge impaired driving when prescription drugs are involved is results-driven. If there is an accident, especially one with serious injuries or a fatality, where the driver has taken prescription medication, the prosecutor is likely to charge driving while impaired. To prove their case at trial, since the medication levels alone do not establish intoxication, prosecutors must also focus on the quality of the defendant’s driving in order to show that there was actual impairment to the ability to operate the vehicle safely. But with no frame of reference, it can be difficult to differentiate between bad driver who simply caused an accident, as opposed to a person whose ability to drive was impaired by drugs to the degree that their driving was a criminal offense. Alternatively, if a serious injury or death does occur, a jury may be looking for an excuse to hold someone accountable, and impairment by prescription drugs presents a convenient explanation for why a traffic collision took place.
Because of the complexities inherent in these specific prosecutions, selection of a toxicology and pharmacology expert is vitally important. Toxicologists perform tests to determine what specific drugs are present and pharmacologists explain the effects of the substances on the body, or how multiple drugs would interact with each other. During a trial for impaired driving based on the use of prescription medication, it is necessary for the defense lawyer to present a clear and consistent alternative theory of the events leading to the arrest, one which explains why the defendant was not impaired, supported by something other than mere speculation. Without another possibility to consider, the jury will credit the prosecutor’s claim that the drugs were overpowering, and that the defendant should have known better than to drive in that condition. Witness observations and statements, photographs and accident reconstructions are integral in crafting a strong defense.
There is no question that DUI cases involving prescription medication are complicated and present a unique set of challenges. But after a thorough review of the evidence in the case, with attention to detail and putting all of the discovery into the appropriate context, top lawyers using credible experts craft strong defenses and use the lack of legislative clarity to their benefit, giving their clients the best chances for success. https://www.law.com/newyorklawjournal/2019/12/31/driving-under-the-influence-and-prescription-drugs/?slreturn=20200004101722