The Government War on Prescription Medication
By Andrew Mishlove on June 02, 2015
Prescription Medication DUID Arrests Are ExplodingWe have seen an explosion of persons arrested for driving under the influence of an intoxicant, where the alleged intoxicant is a prescription medication, lawfully taken by the unfortunate citizens who are accused. We call these cases "prescription medication DUID". In their zealousness to target citizens in order to increase highway safety, the government is increasingly aiming at citizens who are ill, and who are using medication prescribed by their doctors.
I see this as a problem.
Let me start by addressing the objections of the highway safety lobby. Yes, I know that it is dangerous to take certain medications and then drive. It is also dangerous, however, to drive when a person is ill, fatigued, or suffering a seizure. It is unfair and bad policy to target persons who are taking medication to prevent these dangerous conditions.
The War on DUID Perpetuates Danger, and Unfairly Targets the SickSome people, for example, have sleep disorders. Doctors often prescribe medication for these people. In general, society wants these people to follow their doctors’ order and take their medication as prescribed. After all, a person who has not slept makes a very dangerous driver. So, it is a bad policy to punish people who accidentally become impaired by the sleep medication; as they are simply doing what they are supposed to do.
Epilepsy is another example. Some epileptics take anti-seizure medication; this medication may impair driving. Obviously, we want epileptics to take their anti-seizure medication. An epileptic seizure while driving is quite dangerous. Criminalizing this behavior simply deters persons from taking the medication they need. This puts the public in danger.
The transportation authorities have the power to restrict or deny driving privileges to persons who, due to medical conditions, are incapable of driving safely. For example, a person with uncontrolled diabetes is subject to suspension of driving privileges until a doctor provides medical clearance. That is appropriate. We would never, however, criminally prosecute a diabetic who lapses into a diabetic event while driving. We would not criminally target an epileptic who has a seizure while driving. We do not criminally prosecute a person who falls asleep while driving. All of these are dangerous situations, and they should be prevented. We recognize, however, that is fundamentally unfair to prosecute people for suffering from disease. It is similarly unfair to prosecute people for taking medication to treat their disease.
The War on DUID Causes Invasions of PrivacyTargeting people who are merely taking their prescribed medication causes extraordinary invasions of privacy at the time of arrest, and in the courtroom.
Think about this example. An elderly father (like mine) is no longer a very good driver. Like many senior citizens, he has insomnia and takes sleep medication. He took some the night before, and as his doctor allows, took some again in the middle of the night. Now, at about 9:00 a.m., he is on his way to the post office. He rolls through a stop sign, and he is pulled over. He’s a bit groggy. If this had occurred a few years ago, in gentler times, the police officer would have notified the DOT of the medical condition, and the DOT would have restricted or suspended your Dad’s license until his doctor gave him medical clearance. Times, however, are no longer so gentle. Today, it is likely that the elderly gentleman will be ordered out of the car and made to do roadside sobriety tests. He will be interrogated, handcuffed and arrested. His car will be towed to a storage lot. The police will demand that he submit a blood sample; if he declines, they will charge him with refusal to submit to a test. He will then be taken to a jail cell and held until he can get someone to pick him up.
If you are shocked by this scenario, understand that it has become an ordinary occurrence. It happens every day to decent, law-abiding citizens. Think about the many levels of invasion of privacy that this senior citizen endures. He is made to do tests on the roadside while bystanders watch. He is questioned as though he is a criminal. He is handcuffed and locked in the back of a squad car. His wrists are bruised. The police demand that he allow his blood to be drawn. All of this is done in the name of highway safety to a man who simply suffers from a disease and old age. None of it is necessary, or even helpful, as the police officer could easily "write him up on a medical." Instead, he is put through an ordeal and is now facing charges.
There is another level of invasion of privacy caused by the war on prescription medication. Law-abiding citizens are now compelled to reveal confidential medical information in public courtrooms. You see, when a person takes his or her prescription medication and has a reaction to it that causes impairment that is a defense to the DUID charge. Also, when a person accidentally takes an overdose of the prescription medication and becomes impaired, that is a defense. Both of these scenarios happen frequently. A law-abiding citizen takes his sleeping pill and goes to bed. Then he gets up in the middle of the night, forgets that he has already taken his pill, and takes another. Or, the doctor changes his medication, and he has a bad reaction to it. Either way, it’s called involuntary impairment. It is a defense to a DUID charge. It requires, however, that this law-abiding citizen go through the ordeal of a trial and reveal his private medical history in a public courtroom.
If this level of police intrusion into our private lives actually kept us safer, it might be worth it. But, I don’t think that we’re one damn bit safer. We are just a whole lot less free.
Untrained Police Make DUID ArrestsAnother shocking problem is that most of the police who are making DUID arrests have inadequate training.
The federal agency assigned to promote highway safety is the National Highway Transportation Safety Administration (NHTSA). Similar to the alcohol-related investigation format, called Standardized Field Sobriety Testing (SFST), NHTSA has also has a drug-related investigation format called DRE. DRE used to stand for Drug Recognition Evaluation; but, in an effort to sound more persuasive, NHTSA changed the name to Drug Recognition Expert. The DRE program is the absolute bare minimum training that any police officer should have in order to investigate suspected impairment by drugs or medication. It is not an extensive course. The only prerequisites are the 3-day SFST course and a 2-day introductory course on drug-types. The DRE training takes only seven days. In those seven days, police are trained in a twelve-part evaluation process. The final examination requires only a 75% proficiency, in a controlled environment. So, qualifying as a police Drug Recognition Expert requires about two weeks of training. That’s a small fraction of what it takes to learn how to cut hair! By contrast, medical doctors must study pharmacology for many years in order to learn to properly recognize and classify the effects of various drugs.
Here’s the bad part. In my experience, the vast majority of police who are investigating suspected cases of DUID have not even taken the DRE training and do not know how to conduct the twelve-part DRE evaluation. Yet, they are out there, making DUID arrests and demanding blood samples!
The Government Uses Questionable Science to Prove "Impairment"The ordeal suffered by law-abiding citizens accused of DUID often continues in the courtroom. You might think that this is where the wrong will be made right and fairness will prevail. You would likely be wrong. In today’s era, where the "war on drunk driving" is the overriding policy, many prosecutors zealously pursue prescription medication DUID cases, even when the evidence of impairment is weak.
The centerpiece of the government’s case is often the "forensic toxicologist". This is a government employee who has a little training and experience in the effects of medication. I emphasize the phrase, "a little training and experience," because it is often very little. Typically a government toxicologist has a college degree in science, perhaps chemistry or biology. They are then given a few weeks of training in the field of pharmacology, which is the study of the effects of medication. Contrast that with the training of an actual pharmacologist, which requires years of education.
Nevertheless, the government employees will take the witness stand and claim to be experts. While they are not really experts in pharmacology, they are experts in how to testify. They are trained and experienced in how to present themselves in a persuasive manner. Like the actor who plays a doctor on television, however, they are not really doctors. They know only the little that they have been trained in order to prosecute citizens. One way these so-called experts seek to persuade is by misusing the medical term “therapeutic range,” as though it were a legal term. My home state, Wisconsin, has only recently begun to curtail this practice and no longer uses the term on its lab reports. It is still, however, a term that is widely abused.
The phrase "therapeutic range" refers to the amount of a medication that will have the desired effect on an individual. So, for a painkiller, the therapeutic range is the amount of medication that will decrease the pain. For an anti-seizure medication, the therapeutic range is the amount that will prevent seizures. The expected therapeutic range for most all medications is published. The therapeutic amount of a medication, however, for any individual may be far different. It is for a trained medical doctor to determine the specific dosage in any particular case.
"Therapeutic range" is often mistaken by lawyers and judges as a legal term, which describes the permissible amount of a medication in a person’s system. This is a false use of the "therapeutic range." Nevertheless, it is a term that is bandied about in courtrooms as though it were the same as the .08 alcohol limit. Government toxicologists will take advantage of this in order to argue that a person whose medication level exceeds the published therapeutic range must, therefore, be impaired.
If You Are Accused of Prescription Medication DUID, You Need a Good Lawyer!I talk to many people charged with DUID who do not believe the government will prosecute them for taking the medication prescribed by their doctor. After all, they think, it seems so unreasonable that it is hard to believe that a prosecution is occurring. The fact, however, is that there is a strong movement among the anti-DUI lobby and the government to zealously prosecute prescription medication DUID cases.
If you are accused of a prescription medication DUID, you will need a good lawyer to fight the charge. So, how do find a good lawyer? Start with the National College for DUI Defense, the only organization accredited by the American Bar Association, and recognized by Wisconsin Supreme Court rules, to certify specialists in the field. Their website www.NCDD.com lists some of the best lawyers in America.
Choose a lawyer willing to talk with you at length about your personal history and your case. Ask the lawyer about his or her experience in fighting and winning DUID cases. Be skeptical of a lawyer who does not take the time to listen to your concerns or who quotes a fee that is too low for a rigorous, zealous defense.
At Mishlove and Stuckert, LLC, we are Wisconsin’s premier OWI/DUI defense firm. We have unmatched experience and success in fighting DUID cases. If you have questions, or if you need help, call us or submit an online case-evaluation request.
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