Defending DUI Cases Also Involving Prescription Or Illegal Drugs

Interviewer: What percentage of the cases you handle involve alcohol versus drugs- either prescription or illegal?

Ellis: The majority are alcohol-related. If I had to put a percentage on it, probably at least 75% of my cases are alcohol cases. We get cases where people get pulled over for having too much prescription medication in their system.

Either they took too much; or they are prescribed a very high amount and perhaps should not be driving. We also see situations routinely where people taking prescription medication have a couple of drinks on top of that, which intensifies the effect.

Interviewer: You can be charged with DUI for illegal drugs like marijuana or cocaine. What happens with prescription drugs such as Oxycontin?

Ellis: If you had so much in your system that you are impaired by that medication, then you could certainly be charged and found guilty of driving under the influence of the prescribed medication.

If it is illegal narcotics, pretty much any amount in your system, you are automatically going to be a DUI. With prescription medication, they look at what they call the “therapeutic level.”

There is a generally recognized level. If somebody is taking a prescribed amount of Percocet, just to give you an example, there should be “X” amount in your system. If there is more than that, then you are deemed to be under the influence of that medication and unable to drive.

I see a lot of those with people who have had long-term injuries, who have been on heavy-duty narcotics for a long period of time. They build up a tolerance, and they are taking high dosages.

A lot of times, they say to me, “Well, my doctor prescribed this amount. I am taking the right amount.” The law says you should not be driving with that amount in your system.

I have seen a lot of cases too with people on Ambien sleeping medication. They cannot sleep at night. They still have some in their system when they drive the next morning. They get into an accident, and lo and behold it comes back there is too much in their system.

A lot of these people are first-time offenders with too much medication. A lot of times, we are able to get the ARD program so they do not have to go to jail or have a record.

Interviewer: Are drug related DUI cases easier or harder to defend compared to DUI cases involving just alcohol?

Ellis: DUI blood test results usually are what they are. They are not that easy to fight. Usually the common defense for any type of DUI, whether it is alcohol or drugs, is probable cause for the stop.

Does the police officer have enough in his mind when he puts on his lights to pull you over, to stop you? That is typically the defense. That is handled with a suppression motion, pretrial, where the prosecution has to prove to the judge there is probable cause to pull the motorist over.

If there is not probable cause, then the case would be suppressed and dismissed. If there is probable cause, then they would be able to proceed. However, with blood test results, all the police have to do is prove it was taken within two hours of when the person drove, and it was taken by an accredited hospital.

Then, they just have to prove the chain of custody, that the blood tested was in fact this motorist’s blood.

We go to suppression in DUI cases when a judge says, “I agree with defense. I am not going to allow that evidence in.” The case is suppressed. That is the greatest feeling in the world.

This is because the man or woman sitting next to me is usually just a regular person who, for whatever circumstance, got in a bit of trouble. They are just regular people who made a mistake. That usually is very gratifying when we can get a case dismissed.