Drug DUI news: Rx med affirmative defense fails
North Dakota has a law that absolves people of criminal culpability if they drive impaired by prescription medications when used as directed. This case tests the reach of that law and what must be provided and proved for a DUI defendant to succeed with such a claim.
Relevant excerpts from the opinion:
We begin by noting that there is no argument on appeal that Bitz was not impaired on November 21, 2007; rather, the crux of her argument involves whether over-the-counter medications are included within the purview of N.D.C.C. § 39-08-01(1), and whether there was sufficient evidence that she violated this section. We also note that no evidence was introduced at trial to establish which drug or drugs predominately caused Bitz's impairment on the road. Further, the State did not introduce evidence linking the medications found in her urine with her impairment. Notwithstanding the shortcomings in the evidence, the language of the statute and the latitude accorded the jury in drawing reasonable inferences from the evidence requires us to conclude that a rational factfinder could have found Bitz guilty of driving while under the influence of drugs.
At trial, the forensic scientist testified to the effects and classifications of the drugs found in Bitz's urine sample. Tramadol is a prescription analgesic used to treat pain. Two bottles of Tramadol prescribed to Bitz were admitted into evidence, and neither contained a disclaimer warning against driving after taking the medication. No testimony was presented by the prescribing practitioner. The forensic scientist testified that acetaminophen, ibuprofen, and naproxen are all over-the-counter analgesics, most commonly found in Tylenol, Motrin, and Aleve, respectively. Diphenhydramine or dimenhydrinate is most commonly found in Tylenol PM and Benadryl.
Bitz argues there was insufficient evidence to sustain her conviction for driving under the influence, because she met her burden of proof under N.D.C.C. § 39-08-01 by showing her impairment was caused by a medication prescribed by a physician, and she took that medication as instructed by the prescription. Bitz preserved the issue of sufficiency of the evidence for appellate review.
Likewise, a person can be under the influence of drugs even if the drugs taken by that individual were over-the-counter medications, so long as the drugs or substances had an intoxicating effect or impaired the person's ability to operate a vehicle. While Bitz argues her intake of over-the-counter medications is irrelevant to her ability to drive, the legislature's focus on limiting the defense to prescribed drugs, our rules of statutory interpretation, and our prior legal analysis in Thornton on the scope of intoxicating substances, indicate otherwise.
Analysis: As with any affirmative defense in DUI cases, it is highly improbable to succeed unless presented with strong factual backing. This case could have succeeded on the facts if the prescribing doctor was brought in to testify and eliminated the non-prescription drugs as contributing factors to impairment.
An aside: If the goal is to prevent accidents, then why should prescription medication have its own affirmative defense? I wonder this in the context of alcohol impairment cases, which totally lack a mens rea (guilty mind) element. In other words, a drunk driver does not need to intend to drive drunk nor possess any knowledge that he is impaired. This law from North Dakota seems like a double standard that favors big pharmacy. It also seems like an impossible judicial standard to govern.
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