This holiday season parties will be plenty, alcohol will be flowing, and prescription medications will be taken. The day before Thanksgiving has been rated as the highest DUI arrest days in the county.  The driving under the influence problems arrests stemming from doctor prescribed medications, purchased at a pharmacy, and legally possessed and ingested, are rising.  They also count as a DUI the same as a DUI from alcohol. Whether combined or not with alcohol, these medication can still render you incapable of safe driving and guilty of DUI.

This happened to Ms. Graham on August 1, 2012.  In a Butler County in the Commonwealth Pennsylvania, Ms. Graham was driving too slow for the road conditions and was pulled over for investigation by a 16 year police veteran, knowledgeable of the signs and symptoms of individuals driving under the influence of drugs or alcohol. He concluded that Ms. Graham was unable to operate her motor vehicle safely as a result of an actual or physical impairment, and arrested her for alleged DUI.

Ms. Graham was charged with violating 75 Pa. C.S.A. § 3802(A)(1) and (D)(3). Subsection (D)(3) focuses on individuals operating or in actual physical control of the movement of a vehicle under the combined influence of alcohol and a drug or combination of drugs to a degree which appears the individual’s ability to operate ability to safely drive, operate or be an actual physical control of the movement of the vehicle.

Ms. Graham went to trial. The officer testified that he observed Ms. Graham’s vehicle traveling below the speed limit and take evasive action in the road when the conditions were dry, clear and nothing was in the roadway requiring any type of invasive action. After initiating a traffic stop and approaching the vehicle, it appeared that Ms. Graham was talking on her phone and did not acknowledge him. Ms. Graham then “fumbled” around her wallet looking for her license and registration, but continued to speak on the phone.

Her eyes were bloodshot, glassy, and her speech was slow and slurred. The officer asked Ms. Graham what, if anything, she drank that evening. She voluntarily answered that she did not drink alcohol but that she did take her prescribed medications of Celexa, HydroPam, and Vistaril.  She stated the medications were prescribed for her depression and bipolar disorders. Ms. Graham refused the to submit to a blood draw, acknowledging there would be evidence of her medications in her blood.

The Commonwealth closed is case arguing that the officer’s observations and her failure on three field sobriety tests was insufficient evidence upon which the jury could find her guilty of violating § 3802(d)(3), operating the motor vehicle under the influence of alcohol and drugs in any combination. Significantly, the Commonwealth did not present expert testimony as to the medical effect of Ms. Graham’s admitted prescriptions on individual of her height and size.

In sum, the Commonwealth evidence was only the police officer’s testimony.  It did not present evidence of any blood or alcohol tests suggesting the presence of any medication or alcohol in Ms. Graham’s body.  Ms. Graham’s admission of drug ingestion was the only evidence of such.  The officer did testify about his observations of Ms. Graham’s physical demeanor on the night in question. The Commonwealth did not qualify him as an expert, but as a layperson with significant experience in these matters.

The jury found Ms. Graham guilty of violating 75 Pa.C.S.A. §3802(d)(3), driving under the influence of drugs that rendered her incapable of safe driving. Ms. Graham filed a petition for judgment of acquittal, asking the trial court to vacate the jury’s verdict, arguing the Commonwealth did not present sufficient evidence at the time of trial to meet its burden of proof. The trial court agreed.

The Commonwealth appealed to Superior Court, which reversed on November 26, 2013. Commonwealth v Graham, 2013 Pa.Super.306 (Pa. Super 2013).   Superior court rested its decision on the seminal case of Commonwealth v. Griffith, 32 A.3d 1231(Pa. 2011).  In Griffith the parties introduced no expert testimony as to the pharmacological properties of the drugs that the defendant ingested whether any of the drugs could have impaired the defendants ability to safely drive or call whether a combination of the drugs could have impaired the defendants ability to safely drive.  The Supreme Court stated the focus of Section 3802(d)(2) is not upon the type of evidence introduced, but upon whether the totality of the evidence proved to a  jury or fact finder that the defendant’s inability to drive safely “was the result of the influence of a drug or combination of drugs.”

The Graham Court then applied the law of Griffith to the facts of the case and expressly held that the evidence (an experienced police officer closely observed [the defendant’s] behavior, demeanor, unsteadiness, and inability to perform field sobriety tests, all of which led him to request laboratory tests for the detection of controlled substances in [the defendant’s] blood and the defendant’s admission to taking prescription medications) was sufficient to support the defendant’s conviction for driving under the influence of a drug or combination of drugs.

The lesson from both of these cases is to not talk or say anything incriminating to the police officer who stops you for a traffic stop.  Do not admit, acknowledge, suggest, explain, or answer any questions regarding any prescription medication ingestion. These are incriminating questions seeking answers or blurt outs that will be used against you. The police officer will put in his police report every word you utter regarding your medication use.

Consequently, if you refuse the blood test, to which you are allowed, the only evidence of drug use will be your own words. Admissions or tacit statements saying “I took my prescribed medications for…” or “Here is the medication I took, I have a prescription for this…” will be used against you. The mere fact that you are driving and the officer believes these medications rendered you incapable of safe driving is the problem.  Once you admit to taking the medication, the fact finder may consider that fact as the basis to for the officer’s description of your “odd” behavior during the traffic stop.

The Laws in the Commonwealth of Pa do not require the police to introduce an expert to testify how the medication affects the ability to drive, just that you took the medication and the office can testify how you actually were driving. It is then for the fact finder or Jury to decide if you were unable to operate a motor vehicle safely or you were incapable due to the effects of your medication.

So do not admit to taking any medication for any medical condition.  Call me about your case.