DUI and I was sober??? wth??

[justalayman]

GoIllini;2735583]The logic here doesn't add up. Millions of people take ritalin and some of them are bad drivers. Should we test everyone who gets pulled over for bad driving to see if they have ritalin in their system and give them a DUI if that is the case even though ritalin doesn't have a material impact on their driving?

as I said; it is presumed that a person is capable of driving safely lest they would not have been issued a license or at least it would have been revoked for associated problems. So, you have to presume a person is a safe driver. If they are now observed to be driving in an unsafe manner and they are under the influence of ddrugs, it can be inferred it was due to the drugs. The driver would have to prove otherwise.

Maybe we should blame bad driving on food, which has a chemical makeup. If you've eaten tacos in the past 48 hours and you're driving badly, maybe we should presume that food was the culprit and give you a DUI.

read the statute again.

Or maybe we can blame it on pollution. We can do a blood test, and if there are elevated levels of CO in your blood from driving on the highway, perhaps we should presume that your impairment was caused by those chemicals and give you a DUI.

again, refer to the statute

The real question here isn't whether you have medication in your system- it's whether that medication has a materially adverse impact on your driving.

read the first answer above

Yes, but lots of people get older and have trouble with their reaction times and sometimes people who are emotional or having a bad day can't drive safely and it has nothing to do with chemicals in their system.

but if there are drugs in their system, how do you prove the drugs did not cause the person to react in the manner they did?

Evidence that the driver has safely operated vehicles while medicated in the past would go a long way to showing he/she wasn't drunk, especially given that there's no per-se rule for legal drugs AFAIK.

It's not a matter of being drunk or intoxicated. The requirement is "not able to operate a vehicle safely". That requires testimony by the officer to support that claim.

If the OP were filthy rich, she could probably even hire a team of drunk driving experts to take her on a closed course and show the medication doesn't cause material impairment.

the only way to do that would be to replicate the situation. Each person is affected differently. Personally, I can't drive after 1/2 of a beer but at 270 pounds, I am far from an illegal BAC but I am definately under the influence to the point I couldn't drive safely.

In any case, given that everything besides the dilated pupils can be explained by her having a bad day, she has dilated pupils without medication, that there's a good chance at least a few people on the jury think IL's have gone waaay too far and some others have taken medication and driven in the past, and that she's entitled to the benefit of the doubt, how do you think the jury's going to swing? Yes, they could swing either way, but if you had to take a guess, which way would you suspect if she had a good lawyer who could make her case?

It would be close. She keeps relating actions that are indicative of intoxicated or under the influence of drugs. Depending on what the officer claims, those issues may be enough to allow the court to determine she could not safely operate a vehicle.

The police officer was right to suspect she might be DUI given the dilated pupils. That's not to say she's clearly guilty, especially when there's a perfectly reasonable explanation for everything.

all that really matters is whether the cop can sustain a claim she could not safely operate a vehicle.

I think a good lawyer

I think a good lawyer would go a long way to winning here. Of course, we don't have the officers testimony. That is going to be crucial in this case.

 

[GoIllini]

as I said; it is presumed that a person is capable of driving safely lest they would not have been issued a license or at least it would have been revoked for associated problems. So, you have to presume a person is a safe driver. If they are now observed to be driving in an unsafe manner and they are under the influence of ddrugs, it can be inferred it was due to the drugs. The driver would have to prove otherwise.

I dunno. As a juror, I would presume the reason she was a bad driver at 3AM was because she hadn't gotten enough sleep. I would want to see some expert testimony about the level of drugs in her system being above a threshhold beyond all reasonable doubt that she would be impaired. The fact that a team of experts from the FDA created a warning label stating that operating machinery may be acceptable on the medication if done with care would lead me to presume that something else caused the bad driving if she was taking the medication as directed. Heck, the FDA is well aware of drunk driving laws and would not allow a medication that causes driving impairment without a specific warning label that specifically forbids all driving whatsoever.

read the statute again.



again, refer to the statute

read the first answer above

(4) under the influence of any other drug or
combination of drugs to a degree that renders the person incapable of safely driving;

Exactly. The law says that it has to be a drug impairment that renders, thus implying cause and effect- not two unrelated things going on at the same time. As far as I know, there's no per-se law just for bad driving and having some sort of chemical in your system. It must be a material impairment caused by the chemical.

I don't see what the big deal here is. She took a drug that the FDA evaluated for whether it caused issues with driving, and the FDA concluded that drivers would probably not be impaired by the drug if they operated the vehicle with care. The real question is, given that she was stopped for something at 3AM, what are the odds she was impaired by the drugs and not something else?

Without any other evidence- and with some sort of proof that her pupils are dilated when she is not on meds, it looks just as likely that she was impaired by being emotional or by being tired than by drugs. And the prosecutor has to prove the others weren't possible beyond all reasonable doubt.

Again, could she be found guilty? Absolutely. Will an IL jury find her guilty when the laws have gone from too loose (25 years ago) to about right (10 years ago) to almost half the jury pool saying they're too draconian (today)? That is a much, much tougher question to answer. If the OP has the money to spend on beating this, he/she wants to go in there with experts, graphs, videos, just boatloads of evidence showing it would be impossible for the drugs to cause an impairment and much more likely for the sleep deprivation or being emotional. Just give the jury an information overload on the (admittedly selective) evidence that the drug doesn't cause impairment, and this should be an open/shut case for any jury. Sad how only the rich can buy justice.

She is in much better shape than someone breathalyzed with a BAC of .09. Much better shape than someone with a BAC of .05 and throwing up. Much better shape than someone with cocaine in their blood or even medical marijuana. Not exactly a .00 BAC and no chemicals found in the urine, but I think it could rank in the top 2-3% of DUI questions I've seen on these forums where you've got a decent chance in front of a jury. (I am not an expert or a lawyer, just someone who watches these forums.)

 

[GoIllini]

Pay attention to Zigner's postings at your own risk. I don't think he knows much.

Zigner is actually an expert in a lot of areas, but in his court, the OP is guilty until proven innocent. Sorry Zigner, I respect ya, but just had to put it out there.

 

[CdwJava]

It was 3 AM. You could have also been having trouble driving and what else because you were tired. There's no tests to support you had a certain level of medication in your blood and that was causing the impairment.

Well, yes and no. Some states assume that if the test is above the cutoff level that it is impairing. Most do not.

One can also articulate the impact a certain drug will have on physiological responses at a certain concentration of the drug in the blood stream. This is a long way to go for a DUI, but it CAN be done ... though it rarely is.

Q: for CDW Java: Agree with you about driving impaired with a .00 BAC, but if I am driving impaired due to sleep deprivation and I drink 2 mL of beer, does that make me DUI?

It could. It depends upon the totality of the circumstances and the results of the officer's observations and FSTs as well as the chemical test.

In those states with negligent or distracted driving laws, a lesser offense might be had. In my state, if you were so tired as to tank on the FSTs and alcohol was present, you would likely be arrested. Whether a chemical test would com in at .05 or higher, or a blood/urine test might test positive for other substances would depend on the amount o consumption.

Or does it just make me a tired driver who drank a chemical that had an infinitessimal affect on his driving ability?

Most truly tired drivers tend to wake up when the officer is asking them to step out of the car. As such, a tired driver is no all that likely to find himself hooked up for FSTs unless he continues to exhibit the objective signs of impairment.

I dunno. I've taken medications in the past and driven, and I wouldn't be that great of a driver at 3 AM with or without them. And a lot of folks I've spoken to in IL think the drunk driving laws are starting to go too far. Maybe a good defense is to ask who wouldn't be a bad driver at 3 AM

Ask who? No witness would be qualified to answer that, and a prosecutor would be remiss to allow such a question to one of the state's witnesses.

I suppose the defense attorney can try to pursue an argument that fatigue was the cause for the observed impairment and not drugs or alcohol, but the defense had also better be looking at a negative drug test and a low BAC.

and ask defendant if she's ever been impaired on the same medications during the day? Especially if you've got an older jury that might be taking prescription meds themselves.

Ah, the old, "You know you've driven impaired, too ... " defense based upon an emotional appeal to the jury. Tricky. But, this often tends to backfire.

Time to find a real good lawyer and maybe an expert witness or two. I don't think this is either an obvious conviction or an obvious dismissal.

If the observations are weak or inconclusive, then the matter might be dropped. But, if the officer is articulate and well trained, then the state might move ahead. And experts are still a crap shoot, and they can be very, very expensive.

 

[Zigner]

Zigner is actually an expert in a lot of areas, but in his court, the OP is guilty until proven innocent. Sorry Zigner, I respect ya, but just had to put it out there.

That is simply NOT true. However, I call 'em like I see (read) 'em.

 

[justalayman]

GoIllini;2735635]I dunno. As a juror, I would presume the reason she was a bad driver at 3AM was because she hadn't gotten enough sleep.

then she can negotiate for a reduced charge of impaired driving rather than DUI. Regarldess of why why she was impaired, if she was impaired to the point it was not safe for her to drive, she should not have been driving. Some states specifically include lack of sleep as a basis for impaired driving.

The fact that a team of experts from the FDA created a warning label stating that operating machinery may be acceptable on the medication if done with care would lead me to presume that something else caused the bad driving if she was taking the medication as directed

. that isn't what they said. They said it may cause such operation to be unsafe. They never stated it was safe to operate machinery while using those meds.

Heck, the FDA is well aware of drunk driving laws and would not allow a medication that causes driving impairment without a specific warning label that specifically forbids all driving whatsoever.

Not true. It is an individual situation, just like drinking. Using your basis for argument, any drinking should result in not being allowed to drive. We know you can become intoxicated enough to not be able to drive safely but we also know that in limited quantities, it doesn't cause one to be unsafe.

Exactly. The law says that it has to be a drug impairment that renders, thus implying cause and effect- not two unrelated things going on at the same time. As far as I know, there's no per-se law just for bad driving and having some sort of chemical in your system. It must be a material impairment caused by the chemical.

and since an licensed driver without drugs is accepted to be a safe driver, observing unsafe driving coupled with the presence of drugs shows DUI. The defendant then has to prove otherwise.

I don't see what the big deal here is. She took a drug that the FDA evaluated for whether it caused issues with driving, and the FDA concluded that drivers would probably not be impaired by the drug if they operated the vehicle with care.

where do you get that? The warnings specifically state to not drive until it is known how the meds affect your ability to drive. They NEVER state there is a point where it will be safe to drive while using those meds.

The real question is, given that she was stopped for something at 3AM, what are the odds she was impaired by the drugs?

given the meds she had available; I would say pretty good.

Without any other evidence- and with some sort of proof that her pupils are dilated when she is not on meds, it looks just as likely that she was impaired by being emotional or by being tired than by drugs. And the prosecutor has to prove the others weren't possible beyond all reasonable doubt

the dilated eyes is not proof of an inability to drive safely. That must be determined by testing reactions and/or obviously from observation of her driving. Regarldess of her pupils, if the officer cannot support a claim of not being able to safely operate a vehicle, she is not guilty.

 

[GoIllini]

In those states with negligent or distracted driving laws, a lesser offense might be had. In my state, if you were so tired as to tank on the FSTs and alcohol was present, you would likely be arrested. Whether a chemical test would com in at .05 or higher, or a blood/urine test might test positive for other substances would depend on the amount o consumption.

Agree on the arrest, but do you have any insight on the conviction? If I have a BAC of .002 and I pass out from exhaustion on the FST, does that mean that alcohol is rendering me impaired or does it mean that I'm so tired I just really shouldn't be driving and the alcohol is ancillary to the impairment?

Also, isn't CA a comparatively much more serious state when it comes to drunk driving? NY/NJ are a lot tougher than IL and WI were when I moved out here a couple years ago, and everyone out here says that the police in CA are pretty darned strict compared to NY when it comes to DUI.

I think the scary thing for me and a lot of people in the jury pool is that this could just as easily have happened to them. You follow all the rules, take your medication as directed, are advised by the FDA that driving is probably OK on this medication if you do it with care, then you make a couple mistakes while driving and instead of getting a regular traffic ticket or even reckless driving, you get a DUI instead. If they can give OP a DUI for taking prescription meds that didn't specifically contraindicate driving and she has been just fine behind the wheel on those meds in the past, they are now only one step away from giving me a DUI when I take my cold medication.

Again, why the OP needs a good lawyer. If he plays his cards right, anybody on the jury who's not a Christian Scientist is going to be worrying that they're next. Actually, can the OP PM me her county? If the prosecutor goes for this case, I've got a friend in IL who wants to run for DA, and I've got the perfect ad in a state where the electorate thinks the drunk driving laws have gone too far.

 

[CdwJava]

Agree on the arrest, but do you have any insight on the conviction? If I have a BAC of .002 and I pass out from exhaustion on the FST, does that mean that alcohol is rendering me impaired or does it mean that I'm so tired I just really shouldn't be driving and the alcohol is ancillary to the impairment?

An argument can be made that the alcohol was the proximate cause ... but, at .02, that might be a tough one to make unless drugs were also present.

But, frankly, anyone driving so impaired as to pass out when being interviewed by the officer should not be driving in the first place and probably should be charged with something if at all possible.

Also, isn't CA a comparatively much more serious state when it comes to drunk driving?

That depends on who you are comparing it to, I suppose. We have a couple days in jail, fines & fees, alcohol counseling, etc. pretty much like most other states. Some have more, some have less.

NY/NJ are a lot tougher than IL and WI were when I moved out here a couple years ago, and everyone out here says that the police in CA are pretty darned strict compared to NY when it comes to DUI.

I couldn't say. But, it may be that CA sees more DUI offenses or has a bigger problem. People here drive more miles than they do in NY. We also emphasize traffic safety and DUI enforcement a lot out here ... and many of us have seen far too many deaths from DUI so we tend to WANT to follow through with them.

I think the scary thing for me and a lot of people in the jury pool is that this could just as easily have happened to them.

Not if they are taking their meds as prescribed, and the meds are not - by themselves - impairing. Some are impairing and most of those have labels advising of that fact. The problem often comes when people mix prescriptions with other prescriptions, or illicit drugs, or alcohol. When that happens we can get what is referred to as a "synergistic" effect which effectively means that both substances are exaggerated. So, maybe that glass of wine and that Vicodon prescription alone will no be impairing, put them together and they may act as a force multiplier and cause a person to be very impaired in short order.

You follow all the rules, take your medication as directed, are advised by the FDA that driving is probably OK on this medication if you do it with care,

I do not believe the FDA provides any recommendation on driving. If a person takes a medication that impairs them or makes them feel funny at all it is incumbent upon them to make the decision NOT to drive.

If they can give OP a DUI for taking prescription meds that didn't specifically contraindicate driving and she has been just fine behind the wheel on those meds in the past, they are now only one step away from giving me a DUI when I take my cold medication.

If you take enough of the cold medicine, or take it in conjunction with other stuff, yes, you might get a DUI.

The point is one can avoid a DUI with some ease. Sometimes stuff happens ... usually people know the effects their meds have on them and that is why some of the questions we are trained to ask (but is not often asked by the average beat cop) involves the taking of any medication and how those meds make the person feel, and whether they feel those effects at that moment. The most common answer to those queries when we find people who are impaired on meds is that they do feel the effects.

 

[justalayman]

If you take enough of the cold medicine, or take it in conjunction with other stuff, yes, you might get a DUI.
.

heck, we had a person in my state convicted for DUI for having "enough" mouthwash. I guess they didn't read the bottle where is said not to swallow the stuff.

 

[CdwJava]

heck, we had a person in my state convicted for DUI for having "enough" mouthwash. I guess they didn't read the bottle where is said not to swallow the stuff.

Somewhere I did the math on how much Nyquil one would have to take to reach .05 and it was a lot.

Mouthwash has a much higher alcohol concentration that cough medicine, but I have yet to hear anyone claim they swallowed it! Though some people try to use that as an excuse for a high BAC reading ... they haven't read that the machines manufactured in the last 15+ years are capable of addressing the issue.

 

[GoIllini]

that isn't what they said. They said it may cause such operation to be unsafe. They never stated it was safe to operate machinery while using those meds.

They said, "be careful when you drive or operate machinery." That means it *could* cause unsafe operation, but most drivers will be fine if they drive with care. Given that the prosecutor has to prove this beyond all reasonable doubt, the FDA warning label is actually embarassing to him, because the FDA is actually stating that 95% of people who take this medicine are not going to be impaired, but 5% are. Given that more than 5% of people are impaired from tired driving, the conditional probability of her being impaired from just being tired rather than drunk is greater than 50% given no other information. The dilated pupils probably do not come into play unless she doesn't have them during the day.

Not true. It is an individual situation, just like drinking. Using your basis for argument, any drinking should result in not being allowed to drive. We know you can become intoxicated enough to not be able to drive safely but we also know that in limited quantities, it doesn't cause one to be unsafe.

Exactly. And we really don't know what her individual situation is and she is entitled to reasonable doubt. My point is that if you were driving unsafely and have a BAC of .000007, using everyone else's logic, the presumption is that you're guilty of DUI.

The thing is that we don't know what caused her impairment, and if we can prove that she isn't materially impaired by the medication, any reasonable person is going to strongly presume it was something else. The fact that she has a drug in her system which an expert witness can show doesn't cause impairment is as irrelevant as the presence of Carbon Monoxide in her system to her driving ability.

That's why I think an expert witness is going to be so important.

and since an licensed driver without drugs is accepted to be a safe driver, observing unsafe driving coupled with the presence of drugs shows DUI. The defendant then has to prove otherwise.

That's ridiculous, and you know it. Especially at 3AM, running since 6, 7, or 8 AM- whenever the defendant woke up that day. (I am making a bit of an assumption here that the defendant can correct if I'm wrong.) If I'm driving unsafe at 3AM, it's not because of the Advil I took- it's because of the fact that I've been up for 21 hours. IL should think about passing a law against this, but seeing as they haven't, tired driving isn't illegal.

where do you get that? The warnings specifically state to not drive until it is known how the meds affect your ability to drive. They NEVER state there is a point where it will be safe to drive while using those meds.

Actually they do. Given that the FDA warns people to operate machinery with care, it is presumed that some people can operate the machinery carefully. This is really why you need an expert witness. I'm not an expert, but I come from a family of medical workers, phamacists, and pharma sales reps, and I know there's a very specific threshhold the FDA has for using a stronger warning label and that they always operate with an abundance of caution when it comes to adding warning labels. And beyond a certain threshhold, well below that of preponderance of the evidence or even beyond all reasonable doubt, they will put a black box warning label on the medication stating in no uncertain terms that you should not operate vehicles or machinery under any circumstance.. OP's medication did not hit that threshhold.

given the meds she had available; I would say pretty good.

Again, this is why the OP needs an expert witness. I'd like to think I know enough about prescriptions to suspect tired driving was a more likely cause than the meds themselves, but OP needs to get a doctor or a pharmacist up there to explain the FDA's study and show how the OP reacted to the medication.

the dilated eyes is not proof of an inability to drive safely. That must be determined by testing reactions and/or obviously from observation of her driving. Regarldess of her pupils, if the officer cannot support a claim of not being able to safely operate a vehicle, she is not guilty.

That's true, but how do we define not able to safely operate your vehicle? It's very subjective, and I'm not 100% sure I trust the officer to back down or concede much after he's made the arrest. A much better approach is to say, yes, the officer is claiming her driving was impaired, and we're not going to win with Officer vs. Defendant, but we can prove that it was much more likely that any impairment would have come from the fact she had been up for 21 hours, not from the drugs.

 

[justalayman]

A woman, arrested after failing a sobriety test and telling police she drank three glasses of Listerine, has pleaded guilty to drunken driving.

Police said Carol A. Ries, 50, of Adrian entered guilty pleas Jan. 20. to operating a car under the influence and following too closely. Police suspected she had been drinking alcohol after she rear-ended another vehicle at red light on Jan. 9.

She passed one breathalyzer test, but failed another that used different equipment. Police found a bottle of Listerine in her car, and she told them she had had three glasses earlier in the day. Her blood alcohol level was .3, more than three times the legal limit, police said.

Prosecutors agreed to drop charges of having an open intoxicant in the vehicle and not having insurance, Sgt. Lynn Courington said Wednesday.

According to Listerine manufacturer Pfizer Inc.'s Web site, original formula Listerine contains 26.9 percent alcohol, more than four times that of many malt liquors. Other varieties contain 21.6 percent alcohol.

No telephone listings for a Carol Ries in Adrian, about 75 miles southwest of Detroit, could be found, and the Lenawee County District Court said she did not have a lawyer.

Ries, who does not have a history of drunken driving, could face up to 93 days in jail and a $500 fine when she is sentenced Feb. 11.

that was back in 05.

3 GLASSES of Listerine!!! Heck, that stuff is rougher than whiskey. I can hardly deal with a mouthful in my mouth. I cannot imagine actually drinking it.

 

[justalayman]

, but we can prove that it was much more likely that any impairment would have come from the fact she had been up for 21 hours, not from the drugs.

and that is where she can likely negotiate a plea to impaired driving. Admitting you are impaired but for some other reason is not how to get off the charges. It only gets them reduced. They will have to argue the officers claim of not being able to safely drive. If she can do that, then no conviction, for any charge.

 

[GoIllini]

An argument can be made that the alcohol was the proximate cause ... but, at .02, that might be a tough one to make unless drugs were also present.

But, frankly, anyone driving so impaired as to pass out when being interviewed by the officer should not be driving in the first place and probably should be charged with something if at all possible.

Well, I really did mean 1/10th of .02. That said, I completely agree with you here that someone who passes out while talking to the PO should not be driving and probably needs to get some sort of very serious moving violation. Whether it's as serious as DUI is another question, though, when tired driving is a lot harder to know about in advance and avoid than DUI.

 

[GoIllini]

and that is where she can likely negotiate a plea to impaired driving. Admitting you are impaired but for some other reason is not how to get off the charges. It only gets them reduced. They will have to argue the officers claim of not being able to safely drive. If she can do that, then no conviction, for any charge.

I'm not sure IL has a statute on impaired driving. I'm googling for it and I don't see it. This is why OP needs a good lawyer.

If any officer can claim you're driving impaired because you made a snarky comment, and get you convicted based on his word vs. yours', this country is in deep trouble.