Interviewer: How are DUI charges different in terms of drugs or prescription medications versus alcohol?
Randy Berman: It’s more difficult for the government to prove impairment. First, let me say that I’m a licensed, registered pharmacist close to 40 years and I’m very familiar with controlled substances that can affect mental status and cause you to be impaired. Unlike Alcohol which has been tested and where experts have agreed upon a specific number that is to cut off between impairment and non-impairment, there is no such number for any other drug.
Having Drugs in Your System Does Not Prove That You are Impaired
Regardless of what tests might show that you’ve got a narcotic or a benzodiazepine or amphetamine, in your system, there is no number associated with any other drug besides alcohol that they can say if your blood shows this level, you’re impaired. There’s a very strong argument to be made in cases where people are charged with DUI based on drugs, but the fact that the drug is in their system doesn’t necessarily mean they were impaired.
The way drugs work including alcohol when you ingest it, as time goes on, there is an absorption and it gets to a peak absorption level and then it starts to drop off as your body metabolizes it out. There’s a certain level where if you’re below a certain amount, there’s no effect on you and above that amount where the pharmacological effect of the drug is active.
Generally an Expert Witness is needed to Explain Impairment Due To Drugs
If you’re below the level on the absorption or below the level on the metabolism, there is no effect even though it’s still on your system. These kinds of things have to be explained to the jury and the judge and generally need an expert witness to explain that to them.
The fact that I understand these types of issues makes me more desirable for people who have a DUI charged based on drugs because I don’t have to learn this, I already know it and I have qualified and testified as an expert in court on these issues.
This transcends to breathalyzers as well. Because of my scientific training, I understand how breathalyzers work and how they can be attacked even if you do blow. As people have different body weights, different fat ratios, different lung capacities, so there’s a whole science devoted to analyzing the DUI breathalyzer results in effectively challenging those scores that come out.
Prescription Drugs Can Also Cause Impairment Resulting in DUI Charges
Interviewer: What are the medical conditions like on diabetes or acid reflux, could that make any sort of difference?
Randy Berman: Certainly, the drugs that you might take for those conditions, chronic conditions like blood pressure, cholesterol, diabetes, they might impair you. However, the only drugs that make it unlawful to be impaired are controlled substances.
You might take an over-the-counter cold medicine that has an antihistamine in it and antihistamines by definition have central nervous system depressant properties so they can make you drowsy. That could cause impairment, but they can’t charge you with DUI if they test and find Benadryl in your system or any other, what we call, legend drugs which are prescription drugs that are not a controlled substance.
There are physical conditions that might affect your ability to perform the test. I’ve had clients who had back or leg problems that when asked to perform the tests they would explain, “I’ve got this chronic knee problem. I can’t walk the line or I can’t stand on one leg.” Those types of arguments are successful with the jury. The jury understands that not everybody can perform these tests. They call them exercises now.