DUI and I was sober??? wth??

[gurl33]

thank you all for your comments, I really do appreciate all of them.

I was very, very tired and I think this is the best defense I have. That along with the idea of suggesting anyone who takes prescription meds or drinks nyquil could get a DUI.

I know there won't be any BAC in my system b/c I did not drink.

I didn't act drunk/drugged in the jail...I was calm as a cucumber and very cooperative.

I have a lawyer, but don't have enough money to call in any expert witness.

The bottle says drive with care and may cause dizziness and drowsiness and that alcohol could greater these effects.

 

[gurl33]

oh, and I had got up at 6 am that day.

 

[CdwJava]

The bottle says drive with care and may cause dizziness and drowsiness and that alcohol could greater these effects.

This is your first clue that driving was probably not your best choice. Unfortunately for you, the warnings on the bottle do not generally give you a legal "out" in a DUI.

If your test came back positive for medication or drugs and the officer can articulate the objective symptoms of impairment, that can be more than enough for a conviction.

The defense may become kinda pricey if you fight it tooth and nail.

In the future, you might consider either changing medications or choosing only to take this stuff when you plan to stay home for the night.

 

[GoIllini]

I have a lawyer, but don't have enough money to call in any expert witness.

The bottle says drive with care and may cause dizziness and drowsiness and that alcohol could greater these effects.

It may not be quite as expensive as you think. A pharmacist or your family doctor might be qualified to testify on this- both of them would know how to take a look at the FDA's and manufacturer's research and talk about what they say about the likelihood of your being impaired from the medication vs. sleep or some non-chemical cause.

I don't think anyone on a jury wants to send someone to jail for driving while on prescription meds that didn't contain an explicit warning label prohibiting all driving. But you do need someone with more credentials than the average juror to help make your defense. An articulate local pharmacist who can go over the pharmaceutical company's studies vs. a prosecutor, lab technician, and just a PO is going to look awfully good in front of a jury if the prosecution doesn't have anything else.

 

[gurl33]

I have driven on them for over a month and they don't make me dizzy or drowsy. In fact, most of the time it does the complete opposite and gives me energy. But, I have never driven on them at 3 in the morning either, or when I was already very tired. I have never abused them either, shoot I still got a script that was given to me over a week ago still unfilled in my purse.

I don't know if IL urine tests will show levels or just that it was in my system. He said he was sending it to the IL Crime Lab in Springfield.

I am scared most of all about losing my job...once my company finds out I got a DUI I am afraid I may lose my job.

 

[CdwJava]

The lab will almost certainly have established a cutoff level. This is usually to avoid a "positive" result on low level prescription doses. However, even the illicit drugs will often have a cutoff level and these are most often decided upon based upon established standards for what the state or local courts have indicated are indicative of a person being under the influence.

Having an expert testify as to what may or even usually happens when a medication is consumed or taken in conjunction with other substances if fine. But, the DA merely has to ask one question to put it all in doubt: "Is it possible that the substance(s) sufficiently impaired the defendant so that she was unable to safely operate a motor vehicle?" The answer will have to be, "Yes."

Ultimately, I believe that it will come down to two things: The presence of drugs in the chemical test, and, the officer's observations and articulation of impairment. The rest is window dressing and billable hours.

 

[GoIllini]

I have driven on them for over a month and they don't make me dizzy or drowsy. In fact, most of the time it does the complete opposite and gives me energy. But, I have never driven on them at 3 in the morning either, or when I was already very tired. I have never abused them either, shoot I still got a script that was given to me over a week ago still unfilled in my purse.

I don't know if IL urine tests will show levels or just that it was in my system. He said he was sending it to the IL Crime Lab in Springfield.

I am scared most of all about losing my job...once my company finds out I got a DUI I am afraid I may lose my job.

Yeah. It will be embarassing, but I don't think anyone will hold it against you quite as much as a .12 BAC, and there's always a good chance a couple of annoyed jurors, who really determine your fate, will do something that starts with the word n and rhymes with bullify. If you get found not-guilty and have any friends who want to run for DA, a sobbing video of you talking about how you never drink and drive you had no idea a DUI could happen to you until Prosecutor Z came along would be the perfect campaign ad if the prosecutor wants to take this to trial.

Having an expert testify as to what may or even usually happens when a medication is consumed or taken in conjunction with other substances if fine. But, the DA merely has to ask one question to put it all in doubt: "Is it possible that the substance(s) sufficiently impaired the defendant so that she was unable to safely operate a motor vehicle?" The answer will have to be, "Yes."

Or possible but not likely.

If she even was impaired, this turns into a conditional probability problem:

Probability(Drugs caused driver to be unsafe at operating vehicle given that she was pulled over showing X symptoms)= P(Drugs impaired driver)/((P(Driver was impaired by being tired + Driver was impaired by being emotional + Driver was impaired by her cast + Drugs impaired driver))

In order to get beyond all reasonable doubt, say 5%, the prosecution has to show that it is nineteen times more likely that the drugs caused her to be driving unsafely rather than any combination of being tired, emotional, or she had a cast for her leg. That's what they'd be up against with me. I'm not sure what other peoples' threshholds for reasonable doubt are, but the drugs, one factor out of four, have to be more likely than all three others combined by 19 to 1- and that's assuming they prove OP was unfit to drive with 0% doubt. (Any less certainty might start to change this equation in OP's favor).

Let's say downstate jurors are happier to convict and only require 75% odds she's guilty. Assuming sufficiently lower odds for all impairments, for every 1% chance of her being impaired due to tired driving, there needs to be a 3% chance of the medicine causing impairment. So if her lawyer can find a study showing 10% of all drivers on the road at 3 AM are impaired due to sleep deprivation, prosecution needs to prove there's a 30% chance the drug would cause impairment. (Thus likely triggering a stronger black box warning on the label.) If the defense can also come out with a study that 5% of people with casts on their legs are impaired drivers, the prosecution needs to prove it to a threshhold of 45%.

In Champaign County, OP would have a stats or math professor on the jury to explain this to the other jurors. Perhaps the lawyer could explain it, though.

The lab will almost certainly have established a cutoff level. This is usually to avoid a "positive" result on low level prescription doses. However, even the illicit drugs will often have a cutoff level and these are most often decided upon based upon established standards for what the state or local courts have indicated are indicative of a person being under the influence.

That's good news. I'm kinda wondering how much a state drug lab is going to be willing to overrule the FDA on whether a normal dose can make someone intoxicated, though, if the FDA doesn't have a black box warning for people not to operate vehicles or machinery under any circumstance on the label already, rather than the milder warning label. And the OP splits her pills. So if the OP took half the recommended dose that night, she might have lucked out that way, as well.

Either way, this seems like a really, really, interesting case when it comes to DUIs. It will be very, very interesting to see how this turns out. For someone willing to spring the money, it could turn into a duel of the expert witnesses. It could turn into questions about whether the OP was a safe driver based on her actions. It could turn into a stats game. It could turn into the jury getting really angry about IL going too far on drunk driving laws by acquitting a woman who didn't have a drop of alcohol or anything illegal or specifically contraindicated for driving in her system. Or it could turn into a conviction.

I don't know how it will turn out, but I really hope the OP comes back here and gives us an update. I really hope this turns into one of the first signs IL drivers are starting to get a reprieve from MADD. They were a great organization in the '80s, but they've gone waaay too far in the past 10 years.

 

[CdwJava]

First, MADD doesn't make DUI laws, your elected state representatives do.

Second, I have seen and been involved in a great many DUI cases and have yet to see anyone raise a probability defense. It will be pretty meaningless if the driver (a) tested positive for an impairing substance, and, (b) the officer is successfully able to argue the objective symptoms of said impairment.

In such a case the defense's last best hope would generally be to cast reasonable doubt on the crime lab's test (not likely), or the officer's evaluation (a variable, but uncommonly beaten). Most DUIs are beaten by defeating the reasonable suspicion for the stop, or, defeating the probable cause for the arrest. If those two stand, a plea deal is the usual end result.

 

[GoIllini]

In such a case the defense's last best hope would generally be to cast reasonable doubt on the crime lab's test (not likely),

Well, here is my question:

Will the crime lab be saying she had a sufficient level of medicine in her blood to cause intoxication beyond all reasonable doubt? If that is the case, why are they disagreeing with the FDA, which specifically states that it's acceptable for people to take the medicine if they drive with care?

The crime lab will probably find a certain amount of medicine in her blood. But probably not at a level that it's going to be intoxicating per-se unless the OP took the wrong dose or they really want to disagree with the FDA.

So again, which is more likely at 3 AM for someone who doesn't have alcohol in their system? Someone being intoxicated from a drug which they operate fine on during the day or someone being impaired from having been awake for 21 hours straight? Is it really 20 times more likely that they're intoxicated from the medicine rather than them just being tired like nearly everyone else would be at 3AM?

I had something similar happen to me when I was back in college, but I was not taking medication and they couldn't consider me intoxicated (I was driving at 13 mph on a residential street two blocks from my house- I was just really tired, had gotten an engineering project in just barely under the wire, and wanted to take it slow). The officer let me drive the last two blocks home, but after that incident, I decided I was not going to drive unless I had gotten some sort of sleep in the past 18 hours.

Frankly, unless you wake up in the afternoon, you should NOT be out on the road at 3AM. I think that was the OP's mistake. Not DUI.

It's going to come down to the jury. 1/6 of the people will be automatically inclined to find an excuse to vote not guilty as a protest against IL's drunk driving laws. Maybe someone will be annoyed enough to hang the jury to get an acquittal unless there's really strong evidence. 1/6 will probably be inclined to vote not guilty because the lady didn't have any alcohol or illegal drugs in her system. And 1/6 will have driven at 3AM and know that there's a lot of reasons people drive funny at that hour.

If she has the money to go to trial and her lawyer agrees, OP needs to think about getting this in front of a jury.

 

[justalayman]

=GoIllini;2736066]

Will the crime lab be saying she had a sufficient level of medicine in her blood to cause intoxication beyond all reasonable doubt

?no because they can't. That is an observational determination.

If that is the case, why are they disagreeing with the FDA, which specifically states that it's acceptable for people to take the medicine if they drive with care?

you are incorrect. The FDA does not ever say it is safe to drive with medicine in you. It warns people it may not be safe and the patient needs to be aware of that and give that possibility due regard.

The crime lab will probably find a certain amount of medicine in her blood. But probably not at a level that it's going to be intoxicating per-se unless the OP took the wrong dose or they really want to disagree with the FDA.

you, again, are misunderstanding the elements of the case. It will come down to a simple: 1. was there drugs in her system at a level that is commonly accepted to have some effect on a typical person. 2. can the officer sustain his statement she was not able to operate a vehicle safely.

that is all that is needed to prove DUI.

Is it really 20 times more likely that they're intoxicated from the medicine rather than them just being tired like nearly everyone else would be at 3AM?

you are missing the point. Even if she was able to safely operate a vehicle during the day with the level of drugs she had in her body it means nothing. If the drugs combined with her fatigue caused her to not be able to safely operate a vehicle, she is guilty of DUI.

I had something similar happen to me when I was back in college, but I was not taking medication and they couldn't consider me intoxicated (I was driving at 13 mph on a residential street two blocks from my house- I was just really tired, had gotten an engineering project in just barely under the wire, and wanted to take it slow). The officer let me drive the last two blocks home, but after that incident, I decided I was not going to drive unless I had gotten some sort of sleep in the past 18 hours.

I would be very cautious of doing that in todays world. As I said previously, several states have specifically included drowsiness or fatigue to be a basis for a charge of unsafe driving.

It's going to come down to the jury. 1/6 of the people will be automatically inclined to find an excuse to vote not guilty as a protest against IL's drunk driving laws.

I guess she will find out.

If she has the money to go to trial and her lawyer agrees, OP needs to think about getting this in front of a jury

.I think we don't have enough facts to make that determination. People tagged with DUI tend to deny they were in fact under the influence of anything. Without the police report and the findings of the officer, we have a very lopsided view of the situation.

 

[GoIllini]

you are incorrect. The FDA does not ever say it is safe to drive with medicine in you. It warns people it may not be safe and the patient needs to be aware of that and give that possibility due regard.

Well, it does by defacto. It's one of the things the FDA studies with nearly every medicine and unless some threshhold like 80% or 95% of folks are safe drivers while on the medicine, they slap a black box label warning on the medication stating that driving may result in serious injury or death. I did not see that caution, so they discovered a lower threshhold, and if you get an FDA official on the stand, he will have to say that the FDA could not find any evidence showing that the medicine causes unsafe driving for all but a small minority of drivers.

Instead, you get a pharmacist up there to talk about the study and state that they covered 500, maybe 1000 patients, maybe 17 reported problems driving, resulting in the mild warning label, but not one was arrested for DUI due to the medication during the entire course of the study and 500 driving years.

you, again, are misunderstanding the elements of the case. It will come down to a simple: 1. was there drugs in her system at a level that is commonly accepted to have some effect on a typical person. 2. can the officer sustain his statement she was not able to operate a vehicle safely.

Well, the law says that the medication must have caused her to drive the vehicle unsafely. Correlation is not causation. This is basic logic, here. I can be an unsafe driver, and if after I am pulled over, I drink two drops of beer, the beer did not cause me to drive unsafely even though I have a potentially intoxicating drug in my system and I was driving unsafely at roughly the same times. I might be guilty of open container, but not DUI.

that is all that is needed to prove DUI.

Here is the text of the statute they need to prove beyond all reasonable doubt:

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

(Emphasis added)

That's all that's needed to get to trial- I agree with you there. To prove the causation beyond all reasonable doubt to a jury? That depends on the jury. Maybe a really trusting jury will buy "medication in system" + "driving badly" means "medication in system" caused "driving badly". So yes, a jury can find her guilty. But I think if you've got a couple logical folks on there who read the statute, they're going to want the prosecutor to prove the medication caused the bad driving before saying guilty. Especially when there's a lot of other explanations at 3AM. And it's the prosecutor's job to prove the case.

With all due respect to downstate IL, I'm pretty sure somebody on a Chicago or Suburban jury wouldn't buy it based on only some medication in the person's system and them driving erratically. The specific text of the IL statute is "renders", not "and", so you're not actually guilty unless there's causation rather than correlation.

you are missing the point. Even if she was able to safely operate a vehicle during the day with the level of drugs she had in her body it means nothing. If the drugs combined with her fatigue caused her to not be able to safely operate a vehicle, she is guilty of DUI.

But that certainly is pretty embarassing to anyone trying to prove she was "under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving".

If they couldn't render her incapable of driving safely during the day and anybody would be rendered incapable of driving safely by going for 21 hours without sleep, the drugs didn't render her incapable of driving safely- the lack of sleep did. In order to clear renders, the prosecutor must either prove that she was capable of safe driving at 3AM without the drugs and incapable of driving with them in her system, or he must prove that she had so much drugs in her system that it would have rendered OP incapable of safe driving even if she were capable in the first place. Based on the wording of the statute, being incapable of driving in the first place because you're really emotional and having a bad day and having taken half a benadryl which wouldn't otherwise render you incapable of safe driving does not appear to constitute a violation of 11‑501.a(4). The way I read it, you either had to be capable of driving safely before taking the benadryl, or you had to have taken so much benadryl after you were an unsafe driver that anyone would be an unsafe driver with that much in their system, regardless of how much they'd taken.

So if the crime lab can't prove the OP had so much medication in her system that anybody would have been rendered incapable of safe driving, the prosecutor has to prove that the OP was capable of safe driving without the medication but became an unsafe driver after the medication beyond all reasonable doubt. And since she was pulled over at 3AM- an hour when most reasonable drivers would be at home asleep and many drivers would be too tired to drive safely, there's not really a presumption she'd be a safe driver without taking the medicine. And that's for the jury to decide on and a smart attorney to point out, anyways.

I would be very cautious of doing that in todays world. As I said previously, several states have specifically included drowsiness or fatigue to be a basis for a charge of unsafe driving.

Unsafe or careless driving is essentially a ticket in Illinois and you can't be tried for the same crime twice after the prosecutor has finalized the DUI charges. I would consider that a great plea deal, though. No jail time, no criminal record, and just a moving violation.

I think we don't have enough facts to make that determination. People tagged with DUI tend to deny they were in fact under the influence of anything. Without the police report and the findings of the officer, we have a very lopsided view of the situation.

You're absolutely right. I tend to lean in favor of the OPs, I guess- they're coming here for help and the only thing I have to go on is what they're telling me.

 

[CdwJava]

Well, here is my question:

Will the crime lab be saying she had a sufficient level of medicine in her blood to cause intoxication beyond all reasonable doubt?

Nope. The lab will state that the concentration of the substance was Xng/ml.

If that is the case, why are they disagreeing with the FDA, which specifically states that it's acceptable for people to take the medicine if they drive with care?

Where does the FDA actually say that?

So again, which is more likely at 3 AM for someone who doesn't have alcohol in their system? Someone being intoxicated from a drug which they operate fine on during the day or someone being impaired from having been awake for 21 hours straight?

The FSTs are designed to evaluate for the objective signs of being under the influence. Being tired will not exhibit those signs. If done properly it will be clear that the person is not under the influence.

It's going to come down to the jury. 1/6 of the people will be automatically inclined to find an excuse to vote not guilty as a protest against IL's drunk driving laws.

I looked around and fond no significant voice of protest in IL about DUI laws. I suspect you may be part of a minority with an axe to grind against DUI laws for some reason, but they are not changing any time soon. And juries tend to go along with the law when/if impairment is demonstrated. Like any criminal matter, if the state fails to prove its case beyond a reasonable doubt, a jury will - or should - acquit.

Understand that the vast majority of DUI cases never go to a jury. Most are plead out for a variety of reasons.

 

[GoIllini]

The FSTs are designed to evaluate for the objective signs of being under the influence. Being tired will not exhibit those signs. If done properly it will be clear that the person is not under the influence.

Absolutely. But I thought the PO didn't perform the standard FST because she had a boot on her leg, and when the officer tried to check her eyes, he discovered that she had enlarged pupils and said something was up before completing the test.

If there were an adverse FST that indicated she were under the influence of something, I'd change my mind. But all I see is enlarged pupils (happens during the day) and tired driver. An FST would have gone a long way towards a conviction.

Where does the FDA actually say that?

The bottle says drive with care. It's a caution notice, but the implication is that the medication does not automatically make driving unsafe. In fact, it implicitly allows driving- otherwise how could you drive if you must do it with care?

 

[CdwJava]

Absolutely. But I thought the PO didn't perform the standard FST because she had a boot on her leg, and when the officer tried to check her eyes, he discovered that she had enlarged pupils and said something was up before completing the test.

I was speaking about the situation in genral and not the speifics of the OP's situation.

Without knowing what the officer saw, it is impossible to know what they have. If all they have is someone yawning and looking drowsy, the defense might have a case for reasonable doubt. But, we don't know what they have.

The bottle says drive with care. It's a caution notice, but the implication is that the medication does not automatically make driving unsafe. In fact, it implicitly allows driving- otherwise how could you drive if you must do it with care?

That notice has NOTHING to do with the FDA. To say that the FDA says it is safe to drive with caution is misleading. Doctors and medical folks rarely say that something is or is not possible. They couch the language with ambiguity because there are very few absolutes when it comes to medicine.

The defendant may have a case for a civil suit against the pharmacy, I suppose, if the sticker was misleading and stated they could drive, but it would have little to no effect on the DUI. Specific intent is not required for a DUI, so the state does not have to prove that the driver intended to drive impaired.

 

[gurl33]

You would not believe how this guy is known for antagonizing young women drivers and harassing them just because he CAN. Since my bogus DUI citation I don't know how many people have told me stories about this cat dating as far back to when he first became an officer and pulled over and harassed every female who ever turned him down in high school. He has even pulled over my lawyers wife before they were married, numerous times, for silly stuff.

He is a jerk and when I didn't comply with his bullying and when he insulted my intelligence I was was NOT nice. That is what got me a DUI...After he insinuated I was on cocaine and then asked why I had prescriptions in my purse I shoved my broken foot in boot up to the window and said "uh, because I have a broken foot, don't you see my crutches in the back seat!!"

My script says I can take 2 every 4-6 hrs...I had had 2 the whole day...and my last one was 6 hrs prior to being pulled over. I should not have been driving but not because of the prescription pills but because I was dog tired. I never even mentioned that I had pulled into a gas station to go pee mix 10 glasses of water with cold weather and I can't hold my bladder..I left my cousins house having to pee but thought I could make it across town..when I got in the car and a couple blocks down the road I knew I couldn't make it so I hurried to the gas station)... and I told him that....make me now wish I would have peed my pants right in front of him, wonder how that would have turned out?

Did I stop for 3 seconds before I turned right, NO...I could sit at an intersection all day and give you very high percentage of drivers who do exactly the same. I wasn't swerving, speeding or driving erratically...not justifiying his reason for pulling me over, he DID have a legitimate reason.

Will my lawyer and I take this to trial? I hope it doesn't go that far, sure I will plea down to a lesser charge like impaired driving..YOU BET!

Of course if you ask the officer his side of story it will be different, he has to justify his actions. I have been told he would give his own mother a DUI and that this guy has had a chip on his shoulder for years.

Do I think I have a better case than most sorry saps who give every excuse in the book as to why they were driving under the influence and really did deserve a DUI...YOU BET =)