Google Screened

Free Consultation

888-355-4752 888-ELLIS-LAW Se Habla Español

Can I Receive a DUI Charge for Prescription Drugs?

Posted on: June 5, 2020

It is illegal in the U.S. to drive under the influence (DUI) of any potentially impairing drug, which includes legal prescription drugs and over-the-counter medicines, as well as alcohol, marijuana, opioids, and methamphetamines. Motorists can be charged with DUI of prescription drugs. However, motorists may be able to have charges reduced or eliminated entirely with the help of an experienced criminal defense lawyer.

Driving under the influence is illegal but is not uncommon. The National Highway Traffic Safety Administration (NHTSA) periodically conducts studies across the country to identify potentially impaired drivers. The NTHSA recently found that 20 percent of nighttime weekend drivers tested positive for drugs or alcohol. Many of those tested positive for prescription drugs. In fact, a much higher percentage of drivers tested during the daytime exhibited the presence of prescription drugs in their system. Millions of Americans use legal prescription drugs daily to calm their anxiety or get to sleep. Alcohol or illegal substances are more commonly used recreationally over the weekends.

Legal Basis for DUI Charges

Drivers can get in legal trouble for driving while impaired. State laws allow police officers to charge a driver with DUI using one of the following two grounds:

  • Per se. A per se charge is based upon the concentration of a substance in the blood. If a blood alcohol concentration (BAC) test reveals a percentage of 0.08 percent or higher, that is grounds for a per se charge, even if the driver did not appear impaired. Some states established BAC tests for other substances, including marijuana, meth, or other drugs. Even if a driver is not visibly impaired, if a blood test shows an illegal concentration of a particular substance, they can be charged.
  • This charge is based on the effects the substance had on the driver. If a driver ran off the road because they became impaired, they can still be charged with DUI. The basis for this type of charge hinges on Field Sobriety Tests or the arresting officer’s testimony rather than a blood test.

Per se charges are usually not applied in prescription drug cases, as there are no sound methods to test for many medicines, including Ativan, Percocet, Valium, and Xanax. Impairment charges are more commonly applied to prescription drug DUIs. Common signs of impairment include drowsiness, dizziness, nausea, blurred vision, an inability to focus, and decreased hand-eye coordination. Anyone taking prescription drugs should know and understand the warning labels that come with the medication. If the warnings caution against driving or operating heavy machinery, consumers may be at risk of impairment at any time.

Field Sobriety Tests

If a driver is pulled over by a police officer for a potential DUI violation, they may be asked to undergo a standard Field Sobriety Test, which may include any of the following:

  • Touching the finger to the nose
  • Counting backwards
  • Standing on one leg
  • Picking up coins
  • Walking and turning
  • Reciting the alphabet
  • Throwing or catching a ball

The officer may also administer the horizontal gaze-nystagmus test. Nystagmus is an involuntary twitching of the eye. During the test, an officer may ask the suspect to gaze at a moving object, such as a flashlight or finger. If the officer notes a distinct and sustained twitching prior to 45 degrees, that may be used as evidence of intoxication. However, this test has been criticized for several reasons, including physical conditions not related to intoxication that may cause nystagmus. Officers may also rely on other signs of impairment, including blood-shot eyes, slurred speech, inability to focus, and erratic driving. Although every state allows officers to charge drivers with impairment DUIs, the level of impairment required for a viable charge varies by state.

Defending DUI Charges Involving Prescription Drugs

For someone to be charged with DUI for prescription drugs, the arresting officer must prove drugs were in the driver’s system and that the level of the driver’s impairment created a danger to those on the road. The police officer may look for evidence of drugs in the car, including Xanax, Valium, Vicodin, or similar drugs. If drugs are found in the vehicle, the officer can ask the driver to produce a valid prescription. If a driver was charged with DUI while using prescription drugs, there are two steps they may need to take to mount a defense:

  • Provide a sound, alternative explanation for any indications of impairment that may have been reported by the police officer.
  • Provide proof that they were following all instructions provided by a doctor when taking the prescribed medicine.

A skilled criminal defense lawyer can help drivers challenge the validity of field sobriety tests, either by demonstrating flaws in the test itself or in the way the test was administered. For example, allergies may cause blood-shot eyes, or a disability or injury may cause slurred speech or nystagmus.

If the prescription drug they are taking is relatively new, one possible defense is that the manufacturer did not provide adequate warning about the possible side effects of impaired driving.

Other Defenses Against DUI

Defendants charged with any type of DUI may also pursue other avenues for having the charges reduced or dismissed, including the following:

  • No reasonable suspicion
  • Flaws or inconsistencies in the arresting officer’s observations

A reasonable suspicion for pulling someone over may include speeding, driving too slowly, or making an illegal turn. Under the Fourth Amendment, an officer cannot pull over a driver unless there is reasonable suspicion. Lacking these, a skilled attorney may be able to successfully argue that there was no probable cause for the arrest. Cases may also succeed or fail because of the arresting officer’s observations of the defendant’s condition at the time of arrest.

Penalties for DUI While Using Prescription Drugs

Penalties for DUI in New York and New Jersey include jail time, fines, license suspension, and insurance surcharges. In New Jersey, prescription drugs are legally categorized as narcotics. The penalties for a DUI while using prescription drugs are equivalent to those for alcohol, including the following, according to the New Jersey Division of Highway Traffic Safety:

If an offender’s BAC is 0.08 percent or higher, but less than 0.10 percent, the penalties are as follows:

  • A fine of $250 to $400
  • Up to 30 days in jail
  • Driver’s license forfeiture until ignition interlock installed
  • Minimum of six hours a day for two consecutive days in an Intoxicated Driver Resource Center (IDRC)
  • An automobile insurance surcharge of $1,000 a year for three years

If the offender’s BAC is 0.10 percent, but less than 0.15 percent, the penalties are as follows:

  • A fine of $300 to $500
  • Up to 30 days in jail
  • Driver’s license forfeiture until ignition interlock installed
  • Minimum of six hours a day for two consecutive days in an IDRC
  • An automobile insurance surcharge of $1,000 a year for three years

Offenders with a BAC of 0.15 percent or higher face the same penalties as above, but they must also install an ignition interlock device in one vehicle they principally operate during the license suspension period of four to six months and for a period of nine to 15 months after license restoration. For second and third offenses, fines are increased, as well as possible jail time. License suspension is automatic, and automobile surcharges increase as well.

A DUI charge can ruin one’s reputation, their finances, and the entire course of their life. However, a DUI charge does not have to result in a conviction. The laws are complex; hiring the right lawyer can make all the difference between a brighter future and jail time, losing one’s license, and even losing one’s job.

Freehold Criminal Defense Lawyers at Ellis Law Help Those Charged with Driving Under the Influence of Prescription Drugs

Drunk driving offenses can impact your driving record, your car insurance costs, and your future. If you were charged with DUI while using prescription drugs, take the steps necessary to protect your best interests. The Freehold criminal defense lawyers at Ellis Law possess more than two decades of legal experience in the courts of New Jersey and New York. We will work to reduce or eliminate the charges against you. Call us today at 732-308-0200 or contact us online.

Centrally located in Freehold, New Jersey, we offer virtual consultations at no charge to clients in East Brunswick, Toms River, Middletown, Jersey City, Neptune, Hudson County, Union County, Essex County, and Ocean County, as well as Brooklyn and New York, New York.

Contact Us

  • This field is for validation purposes and should be left unchanged.
contact ellis law