OIUD 101

The evolution of drugged driving has become a growing problem for citizens and police officers alike. With the increasing number of people consuming and even abusing prescription medications, the states have been quick to respond to the dangers associated with driving under the influence of these substances by passing laws which increase penalties on persons who are convicted of operating under the influence of drugs (OUID).

The problem that states have not quite figured out lies with detection and enforcement. Officers often can tell if a person appears to be under the influence of alcohol after spending no more than a few seconds speaking with the operator of the vehicle. But with prescription medications, it’s not so simple or apparent. For example, take a person who has been prescribed Xanax to help them deal with anxiety. If that person has been drinking and gets pulled over by a police officer, what happens once the officer has determined that the driver has also consumed a Xanax prior to driving? Benzodiazepines (such as Xanax and Valium) can indeed have a negative impact on a person’s ability to operate the vehicle safely. Or, perhaps a person has a prescription for narcotics (e.g., Norco or Vicodin). These are powerful drugs which also can impair the person’s ability to operate a vehicle safely. It is important to note that a person should never consume these substances (with or without alcohol) when driving, without first consulting with their doctor.

Nonetheless, there are a growing number of cases where persons are stopped by an officer and are requested to take a blood test to determine whether they are under the influence of drugs. A conviction for operating under the influence of drugs can have a negative impact on a person’s future, maybe even more devastating than a drunk driving. The stigma associated with having a conviction which suggests an individual has a “drug problem”, standing alone, can have a serious adverse impact on a person’s career. In Michigan, a conviction for drunk driving or drugged driving cannot be expunged. (See MCL 780.621). Therefore, if you receive the label that you were operating under the influence of drugs, it will be on your record forever. (The only exception is a pardon).

Therefore, if you are taking a lawfully prescribed drug and are pulled over by a police officer, you should keep the following in mind:

  1. If the officer has no reason to suspect you to be under the influence of drugs, they are not likely to ask whether you are taking any prescription drugs. Therefore, it is important that you determine, prior to driving, that you are in a condition to safely operate the vehicle after having consumed a controlled substance. In a nutshell, if you’re not acting drunk or tipsy, the officer will not have any reason to ask you about drugs. Be careful not to volunteer this information if it is not asked of you.
  2. If you are pulled over, you are not under any obligation to answer the officer’s questions. However, you must produce your identification, registration, and proof of insurance upon request, but you are not obligated to make a statement. But please know an officer is not required to read you your rights prior to initial roadside questioning. And you better believe they will ask you what you have been up to, how much you’ve had to drink, and possibly whether you have any drugs in the vehicle. Furthermore, be advised that if you decline to make a statement, and the officer suspects you to be under the influence of something, you will probably end up going to jail anyway. The officer is not going to put other motorists (or even you, yourself) in danger by allowing you to operate a motor vehicle while potentially under the influence, unless the cop can be assured that you do not pose a danger to yourself or others. As per their training and experience of having to investigate drunk driving fatalities, they will always err on the side of caution and take you to jail if there is any doubt about the level of impairment.
  3. More and more, officers who suspect people of operating under the influence of drugs—or a combination of alcohol and drugs—may request a blood test to ascertain whether you have drugs in your system. They cannot detect drugs with a breath test. Be careful here. Although the officer has the right to request that you take a blood test, they typically request a breath test if alcohol is involved because it’s easier, more cost-effective, and can be done more expeditiously. If they are seeking a blood test, they typically would have to drive the suspect to the local hospital and seek a blood draw there. In these situations, you must be prepared to explain how the medication you are taking has no effect on your ability to drive, and you need to be able to explain to the officer that the reason you do not want to take a blood test—if they ask—is because you are concerned the medication in your system will be misinterpreted as a medication which will cause impairment. Many controlled substances taken within prescribed doses will not automatically cause impairment. So offer to take a breath test at the jail instead.
  4. Unlike the signs of impairment by alcohol, police officers are not well-equipped with tools (such as standardized field sobriety evaluations) to determine whether a person is under the influence of a controlled substance. For instance, the standardized tests for alcohol—Horizontal Gaze Nystagmus, Walk and Turn, One Leg Stand—are not reliable in testing for impairment by controlled substances. While research groups have attempted to identify reliable tests for the detection of drugged driving, they still have a long way to go. Therefore, officers may be more likely to guess at whether a person is under the influence of drugs, which means that if your blood test shows you have a potentially mood-altering drug in your system, you may find yourself in big trouble.

In conclusion, consult with your physician before you make the potentially fatal decision of mixing your medication with alcohol or driving while under the influence of drugs. Unfortunately, most people who are drinkers tend to ignore the warning written conspicuously on the pill label: “Do not take with alcohol or while operating heavy machinery.” How quickly people ignore these warnings. Yet these warnings are real. Operating heavy machinery means your Chevy Malibu, Ford Escape, and even your Mini Cooper. If you think they’re light, try lifting them up off the ground. Be careful, and remember: the best defense is no o-f-f-e-n-s-e. An ounce of prevention is worth a pound of cure. The ounce of prevention in this scenario is sound, mature, and safe planning. It’s setting aside money—before you venture out to the local watering hole—to hire a cab or call Uber. If you still find yourself (or a family member) on the wrong side of the law, make sure you consult with an attorney who specializes in these types of cases before you plead guilty. You may be surprised to find out that despite the increasingly punitive statutes proscribing drugged driving, there are things an experienced DUI attorney can do to make a soft landing and potentially save your job; your license; and even your life.

Attorney Patrick O’Keefe is a board certified criminal trial attorney in Lansing, Michigan, with 13 years of trial experience. Mr. O’Keefe is a former prosecutor and member of the National College of DUI Defense and the American Institute of DUI Attorneys. Mr. O’Keefe resides in Mason with his wife, Breanna, and their six children.