DUI: Prescription Drugs and Over the Counter Medications

A charge of Driving Under the Influence (DUI) is usually based on the consumption of alcohol, marijuana, illegal drugs, or some combination of the three. However, DUI will be charged when a person is believed to be under the influence or impaired by prescription drugs or over the counter (OTC) medications.

The relevant statutory language states, “A person who drives a motor vehicle or vehicle under the influence of … one or more drugs . . . commits driving under the influence.” Colorado’s DUI statute adopts the definition of drugs found in the statute addressing behavioral health, and alcohol and substance abuse. The definition of a “drug” is broad, and includes any drug listed in the official United States pharmacopoeia, the national formulary, or the official homeopathic pharmacopoeia of the United States. “Drug” also includes any substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in individuals or animals. The definition of “drug” effectively includes all prescription drugs and OTC medications.

While the criminal penalties for an alcohol or marijuana DUI and a drug DUI are the same, there are differences in the way a drug DUI is investigated, prosecuted, and defended.

After the traffic stop, if the officer sees signs of impairment but detects no sign of alcohol or marijuana use, the focus will shift to other drugs. An officer trained as a drug recognition expert (DRE) conducts the examination. The DRE will follow some version of a twelve-part examination developed by the Los Angeles Police Department in the 1970’s. The examination is used to determine if the observed impairment is due to the ingestion of drugs or a medical condition and, if drugs are suspected, the class of drug (opioids, amphetamines, sedatives, etc.).

If the DRE concludes that drugs are the of the caused the impairment, an Express Consent advisement is given, and blood samples taken and tested. While other preliminary tests may be run, one of the blood samples will be tested using a gas chromatography/mass spectrometry (GC/MS) instrument which identifies individual drugs (if any) and determines the amount of each substance identified.

          Unlike alcohol and marijuana levels, presumptive limits for prescription drugs and OTC medications have not been set by Colorado’s legislature. For that reason, an expert in the field of toxicology will usually provide an opinion, either separately or as part of the drug testing report, whether the person was under the influence or impaired by the drugs and drug metabolites found in the blood sample. The defense can obtain the second sample of blood obtained from the driver and have an independent toxicologist conduct an analysis. Analysis of the second blood sample is a check on the accuracy of the government’s toxicology results. Testing the second sample may confirm the state’s test results or supply a basis to challenge the test results as well as the opinion of the state’s expert.           Prescription, and OTC DUI cases present unique challenges. They can be complex and, unfortunately, expensive to defend. A person charged with a DUI based on the consumption of prescription drugs or OTC medications should consult an attorney experienced in such cases.

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