What Are Defenses for Prescription Drug-Related DUIs?

Interviewer: In terms of prescription drug DUIs, what are some of the defenses you’re utilizing?  Do you go into people’s medical history?  What if they’re taking a drug as prescribed or if they have a tolerance?

A Prescription Is a Valid Defense

Mike Munoz: The first defense is you use the law.  In Arizona, it is a defense to have a prescription.  That’s a valid defense.  One of the things we do is we get proof of the prescription.  The second thing you want to do is you want to show that the person took the drugs as prescribed.

Therapeutic Levels and Taking the Drug as Prescribed

You can do that through medical history testimony but one of the keys is if there’s a blood test based on the levels or the breakdowns of the levels of the drug in the blood, you can use that to hopefully help your case.  Sometimes it can hurt but you use that to help to show that the person was taking it within the therapeutic level.

In addition, we explain to the jury that this person took their drugs exactly like their doctor told them. Now the state wants them to be called a criminal when the case is the doctors are giving prescription drugs out all over the country. When people take these drugs, the do the best they can to do it right and just because an officer says they’re impaired doesn’t necessarily mean they are.

Interviewer: Out of the defenses you utilize, what would you say are some of the strongest ones if your client is taking the medication as prescribed?

Mike Munoz: There are numerous defenses but it just really depends on the scenario. We do commonly utilize the client is taking it as prescribed, showing the prescription, and arguing that they were not impaired.  Depending on the case, one defense might be that some of the actions might have been involuntary.

Sleep Driving: Prescription Medication DUIs Attributed to Ambien

Right now, Ambien is a major problem.  The drug has a lot of dangerous effects.  Even the Food and Drug Administration knows that.  The FDA has changed their stands on Ambien. They’ve now acknowledged that people actually sleep drive while they take Ambien and with the Federal government is now acknowledging that, it’s really hard to criminalize people for doing things that they can’t control.

Doctors are prescribing Ambien and if you accidentally sleep drive and you can’t control it because you’re asleep, then how are you culpable for that? That’s a possible defense as well.  Maybe your medication made you do it.  Maybe it wasn’t anything you did wrong, especially if you took it as prescribed.

Drug Tolerance Levels

Interviewer: What about tolerance levels?  Does that have any factor in someone taking a prescription drug?

Mike Munoz: If you’re new to the drug, you might not have tolerance at all and even though you might have taken as prescribed, you might have felt the effect a little bit more. Or, you might have a very strong tolerance in terms of you take it as prescribed and the drug is not helping anymore. Maybe a person tries self- medicating and takes more than they should. But that’s explored more on a case-by-case basis.  Those defenses are oriented based on the facts.

Painkillers and Anti-Anxiety Medications Are Also Attributed to DUIs

Interviewer: Are there certain drugs, besides Ambien that are a factor in DUI arrests?

Mike Munoz: Not necessarily.  There are some drugs that are probably to be looked on as more dangerous than others, such as very strong painkillers, certain benzyl drugs, and drugs that might be used for anxiety can be dangerous.  It really just depends on the drug itself and the levels of the drug in the person.

The state is very aggressive prosecuting any drug-related DUI so they’re all dangerous at this point.  I’m seeing a lot of painkiller prescription drugs, there’s a group of them from Vicodin to OxyContin, Oxycodone, Percocet, those types of drugs.  Most common are anti-anxiety drugs, the Xanax and Zoloft.

Many of these types of DUIs stem from what doctors are prescribing.  It all stems with the doctors.  The more they’re prescribing certain things, the more likely it’s going to be there out there in the general population.

Chemical Testing and DUIs: The Majority of Testing in Arizona Is through Blood Draws as Opposed to Breath Tests

Interviewer: Arizona is mostly a blood testing state, there’s very little breath testing for DUIs?

Mike Munoz: The vast majority of agencies have gone to blood draws.  There’s only a few that still use breath.  The city of Tempe only uses breath to this day. Glendale City uses a lot of breath testing devices.  Some of the Department of Public Safety officers still use breath.  Some of the Sheriff’s officers use breath but the vast majority of Arizona has gone to blood testing for DUIs.

Is Age a Factor in Whether or Not You Are Likely to Be Charged with a Drug-Related DUI?

Interviewer: Do the police care how old you are if you’re taking prescriptions?  If you’re like 65 then they understand, hey, those kinds of people tend to take prescriptions.  Do they have any sympathy or it doesn’t matter?

The Majority of the Population Age 50 and Older Are Commonly Prescribed Some Kind of Medication

Mike Munoz: Whether or not they have sympathy, I don’t know but I know that they are still arresting people who are elderly.  Most people fifty plus years of age take prescriptions from high blood pressure medication to cholesterol medication to anxiety meds to sleep medication.

There’s just a lot of medication that’s being prescribed out there and I’m seeing that police officers really don’t care what the age is.  They’re still arresting people for DUI.  I see a large amount of people who have very serious medical issues that have to take some prescription drugs and the state is still prosecuting them.

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