The biggest fallacy many people believe is that if they have a valid prescription for medication, they cannot be guilty of DWI on prescription drugs. In Texas, persons can be intoxicated due to prescription medication, over the counter medication, illegal drugs, just the same as drinking alcohol. This is a gray area that police officers do not have the formal training to distinguish impairment from a medical condition versus impairment due to medication. There is a big difference between a therapeutic dosage level treating a medical condition, and impairment due to drugs. Officers simply do not have the educational or professional medical training to make this determination.
Yet police officers do make this determination every day utilizing an unreliable and unproven police tool referred to as a 12-step D.R.E. ("drug recognition expert") protocol. This is a police tool created and designed by policemen--not medical doctors. So-called scientific studies demonstrate it is unreliable and results in false arrests more than 50 % of the time. Again, being therapeutically under the influence of a drug in Texas is not a crime unless the drugs are the sole cause of your impairment. There is no magic number for the concentration amount of drugs that are illegal in Texas like there is for alcohol. This is because drugs affect people differently than alcohol, and there have not been routine opportunities for the scientific community to determine unsafe levels of all drugs since they affect every individual differently.
Police officers rely on the label on the side of the prescription bottle that the person prescribed the medicine receives, along with the medicine, an explanation of potential side effects. Side effects can range from headaches to sleepiness to dizziness to drowsiness. Many side effects can impact a person's ability to operate a vehicle or other machinery properly if not therapeutically dosed. Having the capability to determine when a side effect impairs one's ability enough to refrain from the activity is a difficult call for a police officer. Regardless your ability to determine if you are capable of properly driving, if you drive while taking a prescription or over the counter medication, you are at risk of a DWI arrest for drugs.
Prescription Drugs & Texas DWI Law
“Intoxicated” as defined by Texas law is a condition when a person does not have “the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.” According to the plain language of the statute, prescription drugs fall neatly into this category, as do over-the-counter medications. These drugs, however, are legal are necessary to counter a person's illness or other poor health condition. Unlike alcohol consumption - which is legal for the 21 and older population except while driving with a blood alcohol content level at or above 0.08% - there is no per se limit for drug intoxication in the state of Texas, or for that matter anywhere in the country. The police officer has the sole discretion to ask questions, request sobriety tests, and make a determination that you are driving while intoxicated even if the cause of your intoxication is prescription medicine.
DWI drug conviction for prescription medication offers no less punishment than a DWI for marijuana. If you are charged and it is your first DWI offense, the DWI drug charge is a Class B misdemeanor. If you are charged and it is your second DWI offense, the DWI drug charge is a Class A misdemeanor. If you are charged with subsequent DWI offenses, you expose yourself to felony charges, which carry a mandatory minimum prison term of two years and a maximum of ten years. Driving under the influence of prescribed medication is now being seriously enforced. A person has the greatest chance of being wrongly arrested for DWI if they admit to taking their medication even if they are not impaired.
Prescription Drug DWI & Burden of Proof in Texas
A charge requires only the knowledge by the police officer you have consumed a prescription drug. Generally, a police officer will consider multiple factors before arresting you and charging you with a DWI offense. These factors include:
- If you confirm you took medication, the officer will want to know what that medication was, how much was taken, and how long ago it was taken. Medicines that receive heightened attention include Oxycontin, Ambien, Xanax, Vicodin, and Valium.
- The officer will consider the severity of the reason he or she pulled you over for a traffic stop. For instance, where you pulled over because you failed to put your right-hand signal on before you moved over into the next lane, or did you swerve egregiously from one lane to another lane.
- The officer will consider your conduct during the traffic stop. Are you congenial or rude? Are you alert or drowsy?
- The officer will consider any information you provide either freely or subsequent a question.
If the officer arrests and charges you with DWI drugs, you will likely have to provide a blood sample. If you refuse, two things will transpire: (1) you could face additional penalties, including license suspension; and (2) the police will request a warrant and upon its receipt, they will take a blood sample.
If charged, the prosecutor will attempt to prove the charge based on not having the normal use or your physical or mental faculties due to the intoxication caused by the prescription drugs. Because there is no minimum level of intoxication for driving while under the influence of prescription drugs, the prosecutor must provide evidence you were actually impaired; the mere presence of the drug in your system is not enough for a conviction.
Common Medicines that Impair Driving
In Texas, it doesn't matter if the medicine that impaired your driving abilities were over-the-counter or prescribed, you can be charged with DWI Drugs. Most people wrongly believe they are legally okay if the medication is prescribed. Common medicines that police believe impair driving capabilities include:
- Pain relievers. Some people who are encountering serious pain require serious pain relievers. Opiates, including morphine and codeine, is known to cause dizziness, sleepiness, euphoria and disorientation, all of which can impair your driving ability.
- Antihistamines. Most antihistamines today, i.e., Claritin, Allegra and Zyrtec, no longer cause drowsiness. There are, however, many antihistamines that do, but consumers are comfortable with the idea that these types of drugs no longer cause drowsiness and fail to notice the warning on the label. Apart from drowsiness, all antihistamines can dry tear ducts and cause consumers to experience blurred vision.
- Antidepressants. Antidepressants can have different reactions in people. For instance, Trazodone, Nefazodone, and tricyclics can cause drowsiness and a slowed reaction time. Selective serotonin reuptake inhibitors (SSRI) antidepressants, i.e., Prozac, Zoloft, Paxil, Luvox, Lexapro, and Celexa, in contrast, can cause insomnia, which can cause you to be tired and slow during the day.
- Antihypertensives. Antihypertensive medications are used for people with high blood pressure, but in the first few weeks of their use, they can cause listlessness.
- Anti-anxiety agents and muscle relaxants. Prescription medications, like Valium and Xanax, can produce tranquilizing effects on its consumers, which impairs judgment and reaction times.
Americans Use of Medication Increases
More and more Americans are using prescription medication. In fact, a recent study suggested 60 percent of American adults, the highest in history, take prescription medication. As more drivers take medications, the risk of an increase in impaired drivers on the roads also increase. We all need to get some place, and many of us need to take our prescription medicines. So, how do you undertake both necessities without creating potentially unsafe situations? There are a few things you can do to minimize creating an unsafe environment for motorists and their passengers.
- When you receive a new prescription, make sure your doctor knows all medications you are currently on and confirm there are no known interactions that will affect your driving.
- Talk to your doctor or the pharmacist about side effects of any medication prescribed to you. Before you get behind a wheel of a vehicle, you need to know what the possible side effects are.
- Take the drug at home first to see how your body may react to it.
- Take medications exactly as prescribed; do not over-use or abuse.
- Speak to your doctor about changing the time of your dose to coordinate reactions to times when you are not driving or do not expect to drive.
Defenses to DWI Charge for Prescription Medication in Texas
It is not a defense to a DWI drug charge that your doctor prescribed the medicine that impaired your driving. But remember: if you are pulled over, you are not obligated to advise the police officer that you are on medication. If you don't offer this information, then if you take a breathalyzer test, chances are the test will produce a negative result so long as you were not drinking.
If you advised the officer that you are on medication and you are subsequently arrested and charged, you have a defense if you know the medication does not impair your driving. Some medications will produce different reactions in different people. Your defense will be to demonstrate you do not react to the medication in a way that impairs your ability to drive.
A nuanced defense involving comprehensive legal strategy combined with the facts of the case and expert testimony will be developed with the aim for dismissal. If the matter goes to court, the aim will be a not guilty verdict.
Board certified Houston DWI Lawyer Doug Murphy has taught other lawyers all over the country on how to successfully challenge DWI drug cases. Doug has published numerous article on challenging DRE evidence police used to arrest people for DWI drugs, or DUID. Doug Murphy knows how to successfully challenge standardized field sobriety tests, breath tests, blood tests, and any other tests that the state made you undergo before or after your arrest.
DWI Prescription Drug Lawyer in Houston, Texas
An arrest for driving under the influence of prescription medication can be a terrifying experience, especially when you think you were doing nothing wrong. At Doug Murphy Law Firm, we devote our resources and capabilities to DWI cases. We have decades of proven experience and a reputation earned in the courtroom for successful results. Houston DWI attorney Doug Murphy is a board certified DWI lawyer who not only fights on behalf of his clients but constantly gives back to the legal community to teach other attorneys how to do the same. Contact Houston DWI Attorney Doug Murphy today to discuss the circumstances of your case.