Road law
DUIs and legal prescriptions

By Jeff McConnell and James Mennella, attorneys at law

We had a truck driver call in with a situation where he received a driving under the influence, or DUI, charge and couldn't understand why he was arrested because he didn't "drink or do drugs."

I was driving my truck when a cop stopped me and said that I was "driving erratically" and had failed to maintain my own lane. I may have crossed over the lane markings a couple of times, but that was because there were some big pieces of debris on the shoulder that I didn't want to hit. I don't understand why the cop assumed I was drunk or on drugs because I slightly swerved to miss road debris.

The cop gave me a Breathalyzer, and it came back as 0.00. Then I was taken to the local hospital for a blood test. I told the cop that my blood test would be negative too because I don't do drugs.

But I just got the results of my blood test back, and it lists all my prescription meds that I have to take for my health - i.e., meds for my high blood pressure, for my high cholesterol, for my enlarged prostate. These drugs are legal and were prescribed by my doctor. Plus, none of my prescription meds have warnings that tell me not to drive when I take them.

I'm not an alcoholic or a junkie, but I'm being treated like one. If I tell the judge that I don't drink and don't take illegal drugs, do you think she'll dismiss my case?

No, I don't think the judge will dismiss your DUI charge simply because your test results show only legal prescription drugs in your system. So you should plead "not guilty" and have your matter set for a bench trial. Next, share your blood report with your doctor(s) and have your doctor(s) list all of your prescribed medications and state, in writing, that none of the prescribed drugs, when taken separately or in combination, would have the ability to impair your driving abilities. You should have an opportunity to share this information with the district attorney before your trial on your scheduled trial date.

I was stopped by a local cop when I was driving my personal car and he asked me if I'd been drinking or doing drugs. I said no, but the cop still asked me to take a Breathalyzer test. Because I hadn't had any alcohol or drugs, I refused to take the test. The cop went ahead and gave me a DUI ticket and wrote on the ticket that I "refused" the breath test.

It's been two weeks since I got the ticket, and I found out that the DUI charge was dismissed. But I just got a letter from my department of transportation telling me that my driver's license is going to be suspended for one year because I "refused" the original breath test. Is this legal?

Well, your question is certainly timely because on March 4, 2016, the Kansas Supreme Court held that penalizing drivers for refusing to take a breath or blood test, without a warrant, is a violation of the Fourth Amendment (unreasonable search and seizure) and is unconstitutional. This is very big news but, for the time being, applies only to the state of Kansas.

The Kansas Supreme Court ruled that the "breath/blood" test law, which says anyone who operates a motor vehicle in the state has given implied consent to such testing, violates drivers' Fourth Amendment right to unreasonable searches and seizures.

The court held that an individual has the right to withdraw consent, and punishing someone for exercising that right violates the due process clause of the 14th Amendment. The decision applies only to cases where a warrant has not been obtained; Kansas authorities retain the right to obtain a warrant to collect breath or blood samples.

Though this particular decision applies only to Kansas, the outcome could have broader implications for motorists across America. LL

Send any questions or comments regarding transportation law to: Jeff McConnell and James Mennella, Road Law, 3441 W. Memorial, Suite 4, Oklahoma City, OK 73134; call 405-242-2030, fax 888-588-8983, or email roadlaw@att.net.

This column is the opinion of the writer and does not necessarily reflect the opinions of Land Line Magazine or its publisher. Please remember everyone's legal situation is different. Consult with an attorney for specific advice on your situation.