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When Illness is Treated as Impairment: Unfairness in Wisconsin’s OWI/DUI Law

By Andrew Mishlove on January 24, 2017


Consider a case where a person suffers from a chronic sleep disorder for which he is prescribed zolpidem, a sleep medication. It has known side effects including somnambulism, or sleepwalking – as well as sleepeating and sleepdriving,

If sleepdriving is a result of prescription medications, is this man guilty of operating a motor vehicle while under the influence of intoxicants?

Before you answer, here is another type of case.

Consider, also, a man who suffers from adult Attention Deficit Disorder (ADD). To control that condition, he is prescribed Adderall, an amphetamine. He also suffers from chronic back pain and is prescribed low levels of a narcotic pain reliever. He takes these medications as prescribed. A routine traffic stop for a minor violation, however, results in a charge of operating a motor vehicle while under the influence of an intoxicant.

Is a person who takes medication as prescribed, but may be impaired by that medication, guilty of operating a motor vehicle while under the influence of an intoxicant ?

Surprisingly, in Wisconsin there is no clear answer to this question. One case, State v. Gardner, suggests that a person who takes medication as prescribed and suffers unexpected side effects of the medication is not guilty. That case does not come close to solving the problem. The Gardner case has a lot of wiggle room. Courts are routinely ruling that the proper use of prescription medication is no different than drinking too much.

The crazy anomaly with this is prescription marijuana. In Wisconsin, marijuana is illegal for any purpose . We do not allow medical marijuana: and any detectable amount of Delta-9 THC (the active ingredient in marijuana) -- even a trace amount that does not cause impairment – can result in a charge of operating under the influence of THC.

Strangely though, the statute, however, specifically excludes persons with a prescription for marijuana from another state! This exception applies to out-of-state marijuana prescriptions, but not to prescriptions for other medications!

We are seeing more and more people with health problems being charged with traffic offenses or crimes as a result of their prescription medication. Since medical marijuana is now legal in the majority of states (with a few states approving recreational marijuana), we are also seeing many more charges of driving under the influence of marijuana.

We think the legislature is way behind in writing laws that make sense in these situations. In the meantime, decent people who would never drink and drive find themselves in trouble with the law.

We take these cases very seriously. Every day, we fight for reasonable and fair application of the laws to our clients. We believe that the state prosecutes these cases using inadequately trained persons who know little about medicine and pharmacology. By contrast, we have won cases by consulting with the most well-trained and knowledgeable experts in medicine and pharmacology.

Our firm’s attorneys have advanced training in analytic chemistry and pharmacology. In fact, I developed, and I am the Course Director for the nation’s leading course for lawyers in the defense of impaired driving-drug charges (Serious Science: The NCDD Advanced Course Blood Drug Analysis and Trial Advocacy, held at the Shimadzu Lab at the University of Texas-Arlington). This course includes chemistry, pharmacology and law.

Nor do we simply accept a marginal blood test result, especially in trace-level marijuana cases. We have fought and won several cases where we challenged the accuracy of the laboratory tests that claimed to have detected marijuana.

The sad truth is that well-meaning people who would never knowingly risk driving while impaired are finding themselves charged with the same offense as citizens who get drunk and drive. We think this is wrong.

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