Last summer I was arrested for DUI when I wasn't under the influence of drugs or alcohol. They took a breath test and got a 0.00, then the police mistaked me for being on drugs and made me take a drug test. Test came back negative and case was rejected. The reason why they thought I was on drugs was because of my learning disability high functioning autism or asperger syndrome. Now I have a note from my regional center counselor that explains my disability. My question is that now that I have a note that explains my situation how can it protect me from being rearrested and hypathetically lets say I have to take medication or medical marijuana and drive days after taking the drug and get pulled over. Are the cops allowed to drug test me since my note explains why I might seem impared?
I understand that as a condition of me driving I need to take a blood breath or urine and that I have the right to refuse FST and PAS (over 21). I just want to prevent a misunderstanding so I don't get in trouble for doing something I didn't do. I got pulled over again this summer, but I showed the cop my letter and he let me go with no furthur questioning. I just want to make sure that either I don't get in trouble for something I didn't do or can avoid being arrested and also I read that a DRE can not examine those with a medical condition. Mine is similar. What I don't want is if I need to take medication and am not impared and take it days later to have them mistake me for being on drugs just cause of my behavior. Theres no case, just looking for more info.
Criminal Defense Attorney
I would carry that letter with you at all times. Hopefully the police, if they stop you, will afford you the courtesy of reading the letter. However you may still get stopped and investigated if the police believe there is probable cause to believe your driving while impaired. Because, in the end, such a determination is essentially subjective, it's very hard to establish a violation. (Each situation is different and must be examined on its facts to determine if the police acted reasonably.)
Let's be clear: no matter what diagnosis and disability you have, you do not have a legal right to drive under the influence of marijuana, medical, religious, prescribed, advised, or otherwise. Thinking that you have acquired that right will get you into a lot of grief and legal jeopardy. There is not one cop out there on the road that can be persuaded that you have that right, and there is no letter you can carry that will be persuasive (or correct) on that point.
You may also be operating under some misconceptions about your rights to refuse a B/A if a cop pulls you over for observed driving impairment, but I will leave that issue to the DUI experts here.
It is important to know that a disability is not a pass or bullet-proof shield against enforcement of the laws. If your meds put you under the influence to the extent of a driving impairment, you may need to avoid driving, plain and simple. No one injured on the road gives a damn that the person who crippled them was impaired because the medication -- much less the mj -- was medically advised.
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Criminal Defense Attorney
I practice in Florida. However I agree with the attorneys who have responded to your question. First, I hope you are not continuously stopped. I agree that you should keep your note with you in case you are. The legality of the basis of a stop is determined case by case. If your medications cause impairment your note may not help you avoid a conviction. In FL, a disability of any kind can result in a driver being referred to a medical review board that determines whether a drivers license should be cancelled or revoked if the disability renders the driver unfit to drive. You should consult an attorney in your state to discuss the issue. Marijuana is not legal in FL.
Carry the note (or a copy of it) with you at all time.
You have no right to drive using medication that makes you unable to drive safely, even if it is prescribed or even simply over the counter. If the medication actually makes it safer for you to drive than without it, having an advance note from your doctors to that effect would be a good idea.
You are probably right to refuse the FSTs. They are not designed for people to pass them even without any impairment. You can't perform on a FST such that an officer will say "You pass. Thank you. You may go now."
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You have a difficult situation.
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