Currently, absent a specific odor of alcohol, individuals suffering from ADHD who drive while under the influence of prescribed ADHD medications or are non-medicated can still be charged with, and found guilty of, violating the DUI or DAI statutes of most jurisdictions. In Pennsylvania an officer can testify, with no intoxicant basis, that an operator of a motor vehicle is incapable of safe driving simply based upon behavioral observations.
For the DUI practitioner, providing a judge with an alternative explanation for a client’s erratic and suspicious behavior while operating a car, and during a motor vehicle traffic stop or field sobriety test, is one way to prevail in a DUI prosecution. Society’s current fixation on percentages of our population who have been, or should be, diagnosed with juvenile or adult onset attention deficit hyperactivity disorder parentheses ("ADHD") presents just such an explanatory opportunity to a willing bench.
The physical manifestations of individuals suffering from ADHD are important factors about which traffic cops or DUI police officers should be cross-examined. This is because there are significant behavioral similarities in individuals who fail sobriety test due to intoxication and those who fail due to their ADHD behavioral mannerisms. Individuals suffering from ADHD who attempt to follow instructions from a GPS device, in traffic, at night, while either talking on the phone or listening to music are bound to display to a traffic cop difficulties operating a car.
The typical ADHD sufferer not under the influence of drugs or alcohol sometimes normally drives as follows: making a wide turn, straddling centerline, almost striking an object, weaving, swerving, driving too slowly, too closely, breaking erratically, or drifting into another lane. They also display slow response to traffic signals, inconsistent operation of a motor vehicle, stopping inappropriately and turning abruptly. Experienced DUI trial attorneys recognize that these motor vehicle code violations constitute probable cause to initiate a traffic stop. Trained counsel must now be prepared to have a court understand that such operational deficiencies are due to ADHD and not legal or illegal medications or alcohol intoxication.
However, operational observations are only one part of the cross-examination job. Questioning the basis for an officer’s conclusion that a client failed a field sobriety test is the next step. Here, an ADHD diagnosis is really helpful. This is because ADHD symptoms include poor sustained attention, distracted ability to listen, impaired impulse control and hyperactivity, excessive anger, aggression and risk-taking. ADHD patients typically fail to properly pay attention to an officer's instruction, interrupting them during instruction giving, and commencing the physical examination tests prior to be instructed (because they were not listening or could not listen patiently to the entire instruction). These behavioral failings easily cause the ADHD suspect to fail a field sobriety test. As well, the ADHD sufferer’s inability to follow complex physical coordination instructions typically leads to improper turning, standing on the wrong leg, and not counting out loud as instructed. Presenting as confused and flustered, ADHD individuals always present difficulty in following simple directions given by in investigating officer in a rapid manner, on the side of the road, at night. Having failed probably all of the field sobriety tests, the officer can now testify of these failures as the basis for his conclusion intoxication or inability to operate a motor vehicle safely.
I view cross examination of any expert as a laser cutting off the legs of a three legged stool, causing the expert’s opinion to fall as the stool falls. Sufficiently questioning the testifying officer about his familiarity with ADHD mannerism and their overlap with intoxication behavior will give a judge a reasonable explanation of why the officer may have observed what he did, but why such is not an impairment and why such behavior is not a basis to conclude intoxication. Creating that reasonable doubt as to the basis for the officer’s conclusions, and therefore guilt, will require a trained judge to enter a not guilty verdict.
Please call me to discuss your impaired driving case and its intersection with your ADHD diagnosis or undiagnosed behavior.