I Blew a 0.00 and Still Got a DUI Charge? …or… “Why Did I Tell That Cop About My Meds?”

Seems like half of Florida’s citizens are taking some sort of medications. No judgments here, but the problems erupt when the police pull you over, and you tell them all the meds you’re taking. Remember the old saying, “You have the right to remain silent”? Also know that anything you say can be misquoted and used against you. Once an Orlando DUI cop hears that you may be ‘under the influence’ of a prescription med, the officer‘s associates degree in law enforcement magically transforms into the physio-chemical toxicological powers of an M.D. or Pharm.D., effortlessly translating a driver’s behavior into it’s components of various chemical interactions (can your doctor diagnose that well?).

Let’s throw out a common scenario. Driver gets pulled over for a few swerves across a few lanes of traffic, and eventually the cop asks “Are you taking any meds?” Answer: “Well, I’m taking oxycotin.” With that answer, the officer states that the swerving pattern conveniently matches that of someone under the influence of that particular controlled substance. Welcome to a DUI charge. You blow a 0.00, a urine test is taken but no results yet. Isn’t this the land of the free, why won’t they let me go home now?

The good news is that these cases are tough to prove. Let’s walk thru just two or three of the twenty or more issues that arise in a DUI under a controlled subtance case. To convict on a DUI via oxycotin, as in our example, several things must be shown. First, impairment by oxycotin (or any drug, for that matter) cannot be proven without a toxicology report showing drugs were in the driver’s system. Even a urine screen may not be enough, because urine only shows a presence of a controlled substance being excreted, not the level in a driver’s system–only a blood test would show actual “levels”.

But there are still more problems proving a DUI with drugs case. The driver’s statement that “I’m taking oxycontin” can be suppressed, especially if the state has not proved the “corpus” of their DUI case prior to any attempts to admit a driver’s statement. And another issue is, how will the state prove oxycontin is a controlled substance? Oxycontin is a brand name for oxycodone. The prosecutor must present testimony that Oxycontin is a brand name for the generic oxycodone which is listed in Chapter 893, schedule II of the Florida Statutes. Thus, while your prescription is derived from a controlled substance listed in 893, a criminal defense attorney can preclude the officer from testifying that Oxycontin is derived from oxycodone. Without the ability to admit testimony that a driver had taken a “controlled substance”, the prosecutor barely has a case.

Now, let’s add to our scenario a toxicology report that comes back showing the presence of oxycodone. Game over, right? Wrong. There are entire books (well, multiple chapters for sure) written on the admissibility of evidence of drugs in a DUI case. The focus in deciding whether to admit evidence of drugs is whether such evidence is “relevant.” Excluding drug evidence may require expert testimony on the defense side to show that the drugs found in the urine sample are not “relevant” to the person’s impairment at the time of the offense. Expect the prosecutor to present their toxicologist, and a cop who’s designated a “Drug Recognition Expert (D.R.E.).” And you wonder why a DUI case can take years to resolve?