Written by attorney Jeremy Daniel Hollingshead

Getting a DWI on your own presription-Know your rights and help us win your case

Most of us know that if you drive under the influence of an illegal drug such as cocaine, you could be charged with DWI. Many of us know that if you take somebody else's prescriptions and drive under the influence of those drugs, you could be charged with DWI. You may not have known, however, that you can receive a DWI for driving under the influence of your own prescription drugs.

Because, from time to time, we all take potentially impairing prescription drugs, we all need to know our rights. First of all, these cases can be very expensive to fight, but they are frequently beatable. That said, we need your help to win. Unfortunately, I commonly meet with clients with winnable cases until they spoke to the police and made admissions. Here is what you need to know to help us out:

  1. Answer every question with, "I do not want to answer any questions until I speak with an attorney." Most people think that if they fully cooperate with the police by answering questions or taking field sobriety tests, there is less of a chance that they will be arrested. That is almost never true.

  2. When the officer asks you to get out of your vehicle, get out. Be aware that the officer is observing your balance. That is, the officer is watching how you get out of the car and how you walk.

  3. The officer is now going to ask you to submit to a series of field sobriety tests. When asked, politely tell the officer that "I do not wish to take any tests until I speak with my attorney." You are not required to participate in field sobriety testing in Missouri (including the portable breath test device).

  4. CHEMICAL TEST: At some point after arresting you, the officer is going to ask you take a breath test. He will tell you that if you refuse to take the test, you will immediately lose your license for one year. Although the decision on whether or not to take a chemical test is complicated to say the least (and would require an entire article to itself), I am going to assume for the purposes of this article that you have not drank any significant amounts of alcohol, so you will almost certainly blow well below the legal limit for alcohol. Since you are going to blow under the legal limit for alcohol, take the test. By taking the test, you are accomplishing two very important things in Missouri. First, you are demonstrating that you are not under the influence of alcohol. Second, you WILL NOT immediately lose your driver's license (as of the date of this article).

If you blow under the legal limit, and the officer suspects that you might be under the influence of drugs, the officer may ask you to submit to a second chemical test. Under Missouri law, the officer may require you to submit to up to two different tests. If you refuse either test, you would immediately lose your license for a year. Although it is the subject of debate among some attorneys, I would recommend you take the second test for a couple reasons. First, you don't immediately lose you license even if impairing drugs are found in your system. Second, the vast majority of police departments ask you to submit to a notoriously unreliable urine test. Every lab technician I have ever encountered will admit that a urine test cannot accurately determine the amount of drugs in a person's system. So, even if your urine test reveals the presence of potentially impairing drugs such as Vicodin or Xanax, it is impossible to reliably determine how much Vicodin or Xanax were in your system. Without knowing the quantity of drugs in your system, it is impossible to determine if you were under the influence of the drug(s). Even the much more reliable blood test is subject to many problems. Unlike alcohol, which affects most people in similar ways, drugs affect different people in different ways in different quantities. Therefore, even if your blood test reveals the presence of a specific quantity of drugs, it will be difficult for the State to prove that the quantity in your system would (beyond a reasonable doubt) produce an impairing effect.

  1. Finally, if the officer believes you are under the influence of drugs, he may ask you to submit to a drug recognition evaluation (DRE). A DRE is a twelve step process that tests your balance, vital signs and asks you incriminating questions about the drugs (and dosage) you have taken. Again, simply tell the officer that you do not wish to take any tests until you have spoken with an attorney. If you were able to speak with me, I would tell you not to participate in the DRE. Even though, in my humble opinion, the DRE is a complete joke (i.e. a police officer has no business taking your blood pressure and pulse to determine if you are under the influence of drugs), a jury or judge may not agree. Therefore, do not participate in the DRE.

In conclusion, driving while under the influence of your own prescriptions is a crime in Missouri, and you should avoid doing it. However, it is extremely important that you know what to expect and your rights in the event you are stopped while under the influence of prescriptions. If you only remember one thing from this article, simply tell the officer that "I do not wish to do anything until I have spoken with an attorney." With your help, most DWI drug cases are potentially beatable. Although there are never any guarantees in these types of cases, we have successfully tried many DWI drug cases around the state.

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