Driving Under the Influence of Prescription Drugs
Most people are familiar with the effects of alcohol on the body and how alcohol can impair a person’s driving ability. In most driving under the influence cases of alcohol the Commonwealth only needs to bring to court someone who can testify to your blood alcohol level and, if needed, the impairment the arresting officer witnessed.
In most cases the person who was arrested has a blood alcohol level above the legal limit of .08 and the law does not require the Commonwealth to prove that the person was incapable of safely driving. If your blood alcohol content is above .08 then you are deemed to be incapable of safely driving and it is illegal for you to drive. New case law and problems are arising where people are being accused of being impaired by prescription drugs.
Section 3802(D)(2) of the Vehicle code makes it illegal for someone to drive under the influence of a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive. As you can see, the Commonwealth not only has to prove that you had drugs in your blood but that you were also incapable of safely driving.
The Superior Court of Pennsylvania recently held in Commonwealth v. Griffith that an expert is required to testify that the drugs found in your blood caused you to be incapable of safely driving. An expert , in my opinion, is a toxicologist or some other type of doctor/scientist, but there is a growing trend where the Commonwealth is seeking to use Drug Recognition Evaluators (DRE) to testify in court that the impairment a person is showing was caused by the prescription drugs found in their system.
A DRE is not a doctor or scientist and does not have an MD or PHD. They are simply an officer/trooper with a certain type of training. They are trained to determine if a person is impaired using field sobriety tests and if so, they are trained to determine which classes of drugs a person is under the influence of. They use a reference card to do this. They cannot tell you the dosage a person has consumed or the specific drug that person took.
Without knowing the dosage or drug taken it should be impossible for a DRE to form the “expert” opinion that a person is impaired because of the prescription drugs in their body. An actual expert is required to show that the ingestion of a certain drug is the reason the person is impaired. Without an expert, one is left with the possibility that the drug did not cause the impairment, but maybe the illness for which the drug was provided is actually what is causing signs of impairment.
So first, if you are charged under 3802(D)(2) please contact an attorney as soon as possible. Next, if the Commonwealth plans to use a DRE then a Frye challenge should be done pretrial. That is where your attorney can attack DRE and try and preclude him from testifying to findings which I do not consider to be generally accepted. Lastly, if the court allows a DRE to testify or the Commonwealth is prepared to have a toxicologist or another type of doctor testify then you should talk to your attorney about the possibility of hiring your own expert witness.
If you wish to discuss this trend in the law or if you are charged with a DUI please contact Vincent Monfredo at monfredo@romingerlaw.com
