Nearly all providers prescribe substances that have an impact on their patients’ ability to drive. In addition, many health professionals themselves are prescribed controlled substances lawfully by their primary care physician. However, prescribers give little thought to advising their patients about the implications of driving under the influence of controlled substances, and many prescribers are unaware of the serious consequences of using controlled substances while driving.
Recent Increase in Driving Under the Influence of Drugs Charges
The Federal and State governments have allocated an increased amount of funds to combat the “prescription drug epidemic.” A large portion of these funds are earmarked for training and resources to combat drugged driving, or driving under the influence of drugs. Previously, prosecutors rarely charged individuals under the influence of prescription drugs (Hydrocodone, oxycodone, Xanax, etc.) with an offense. However, prosecutors are becoming savvier in this area and police officers, through increased training and resources, are arresting more citizens for driving under the influence of drugs.
Driving Under the Influence of Drugs Laws
There are three different driving under the influence of drugs laws that you need to be concerned with:
- Operating While Intoxicated (all controlled substances) under MCL 257.625(1)(a);
- Driving Under the Influence of Drugs (Schedule I drugs) under MCL 257.625(8); and
- Operating While Visibly Impaired.
Driving Under the Influence of Controlled Substances (DUI)
A person is operating while intoxicated if he or she drives under the influence of a controlled substance. Therefore, if you or a patient is substantially deprived of normal control or clarity of mind due to the ingestion of prescription drugs, even if lawfully prescribed, they may be guilty of a misdemeanor for driving under the influence of controlled substances. Often, the police will take a blood test to determine the presence of prescription drugs. This blood test alone may be sufficient evidence to support a conviction for driving under the influence of controlled substances.
Is a Valid Prescription a Defense?
Many people think it is a defense that they did not know their prescription would make them intoxicated. To rebut this, prosecutors often introduce drug labels and warnings as evidence in a case. Labels for most controlled substances state that the patient should not ingest the substance while operating heavy machinery (read “a motor vehicle”). In order to prove intent, the prosecution need not prove that the patient knew the drug would make them intoxicated, only that they ingested a controlled substance.
Often, the police will take a blood test and the blood test will show metabolites of a controlled substance. The value of the metabolites in your system may correlate to the last use of the controlled substance and may lead to the inference that a defendant was impaired while driving. However, a skilled defense attorney will introduce evidence, if available, that the metabolites of the drug in the defendant’s system is not proof of last ingestion. In order to rebut allegations of driving under the influence of controlled substances, an attorney skilled in toxicology and knowledgeable about the effects of drug interactions and prescription drugs will be necessary.
Operating With the Presence of Drugs (OWPD)
Pursuant to MCL 257.625(8), if you drive with any amount of a Schedule I controlled substance in your system, you are guilty of driving under the influence of drugs. Schedule I controlled substances are those for which there are no permissible medical use, as well as Marijuana. This includes cocaine, LSD, synthetic cannabinoids, Heroin, ecstasy, ect. While this statute does not relate to the prescription of controlled substances, it is still important for treatment providers to be aware of the risks associated with the use of Schedule I controlled substances.
It is important to note that under this statute, the substance does need not to impair any driving. All that is needed for a conviction is the presence of a Schedule I controlled substance in the person’s system, and proof that he or she drove when it was in the body’s system.
Operating While Visibly Impaired (OWVI)
To prove OWVI, the State does not need to prove the level of impairment under the operating while impaired statute. The State must only prove that the defendant’s ability to drive was shown to be “so weakened or reduced by consumption of [controlled substances] that defendant drove with less ability than would an ordinary, careful and prudent driver.” Here, the police must only show that the driving was visually impaired – this requires less proof than the operating while impaired statute. Basically, it is possible to be charged with OWVI based solely on the observations and opinion of the police officer.
What This Means for Prescribers and Their Patients
All too often, patients charged and convicted of DUI or OWVI were initially unaware that the presence of metabolites of controlled substances in their systems coupled with a visual impairment could lead to a criminal charge. Providers must be cognizant of this when adjusting dosages or attempting alternative therapies, and patients should be specifically advised on the adverse effects of taking prescribed substances.
What this means for Licensed Health Professionals on Prescribed Controlled Substances
In addition, health care professionals licensed by the Department of Licensing and Regulatory Affairs (LARA) must be cautious of taking prescribed controlled substances and operating a vehicle, as the impact on a health care professional’s license from a conviction related to driving under the influence of controlled substances is severe. In recent years, we have seen an increase in the number of doctors, nurses, pharmacists, and other licensed health professional who have faced disciplinary action against their nursing license, medical license and pharmacy license because of a DUI charge related to their driving while under prescribed controlled substances.
About the Author
Ronald W. Chapman II is a health law and criminal defense attorney who specializes in the defense of health professionals facing criminal charges and professional licensing issues. Ron frequently defends nurses and doctors who face disciplinary action against their nursing license and medical license because of a DUI.
Ron was recognized as a Super Lawyers Rising star in 2015 and was recognized as a Michigan Lawyer’s Weekly Up and Coming Lawyer in 2015. Ron is currently an L.L.M. candidate in health law at Loyola University Law School.