By Stacey L. Sklaver, Esq.
February 12, 2013
Driving after taking certain prescription medications, such as benzodiazepines and opioids, can be highly dangerous to the life of the driver as well as the lives of others who share the road. According to a 2010 report, one in three drivers involved in a fatal crash, and who were tested for drugs, produced positive test results. Similarly, a 2010 California study found that three out of every ten people killed in car crashes were drug-impaired.
Driving while under the influence of certain prescription medications can be dangerous because these drugs affect the brain in a way that can impair driving ability. As such, many prescription medications warn against operating machinery, such as motor vehicles, on their labels.
Many states had enacted laws to address the dangers of drug-impaired driving. As of 2009, 19 states have passed Driving Under the Influence of Drugs (DUID) per se laws. Per se laws forbid individuals from driving if the driver has a detectable quantity of particular medications in their blood, sweat, or urine when tested, regardless of their ability to drive safely.
Additionally, 14 states have “incapacity” laws, making it illegal for citizens to drive when the influence of drugs “renders the driver incapable of driving safely.” The Supreme Court has upheld sobriety checkpoints, drug sniffing dogs, and other roadside drug tests as constitutionally valid methods of enforcing these laws.
States have also developed common law doctrines to prevent drug-impaired driving. For example, in Coombes v. Florio, a physician prescribed medication to a patient without advising the patient of potential side effects and without warning the patient not to drive. The patient later killed a pedestrian while driving. The Massachusetts Supreme Court held the physician liable for the death of the third-party under traditional negligence principles.
Identification of cognitive impairment is a significantly problematic issue. Whereas alcohol breath tests and Standardized Field Sobriety Tests are available to test alcohol-impaired drivers, testing for prescription drug impairment is harder. Forty-nine states and the District of Columbia have Drug Evaluation and Classification Programs to certify law enforcement officials as Drug Recognition Experts. The program trains officers to identify drug-impaired drivers and determine the category of drugs causing the impairment. However, the program relies on simple observation, and the categories are based on signs and symptoms that are detectable by an observer, such as bloodshot eyes, pulse rate, impaired coordination, feelings of nausea, etc. The program lacks scientific precision. Blood or urine testing can help investigators identify which drugs drivers were taking around the time of a crash, but such tests cannot determine whether drivers were actually impaired while driving.
In December 2011, Florida Judge Frank Quesada declared that he will suspend defendants’ drivers’ licenses if he finds that the individuals are using oxycodone. Judge Quesada’s approach places the onus on patients to produce a letter from their prescriber stating that they are capable of driving safely. This approach could put prescribers at greater risk for liability if their patient is involved in an automobile crash.
In order to avoid harm caused by prescription drug-impaired driving, prescribers and pharmacists should clearly articulate to their patients that they should not drive if they are taking certain medications. These individuals should find a designated driver or other means of transportation. Many states offer a reduced rate on public transportation or free door-to-door transportation for those with mental, physical, or sensory disabilities, including individuals with such disabilities caused by taking certain prescription medications.
It is also important to educate the public on how dangerous such behavior is and on the possibly fatal consequences. By doing so, individuals who did not receive explicit instructions from prescribers and pharmacists may be more apt check the label of their medications and can learn of the potential consequences for noncompliance with such label. Taking such steps can reduce needless injuries and deaths.
CLAAD is a broad coalition that identifies and advances policies to prevent the diversion, misuse, and abuse of prescription medications while protecting patients’ access to care. Some 30 non-profit health and safety organizations and professional associations have publicly endorsed CLAAD’s National Prescription Drug Abuse Prevention Strategy.
 Drug Involvement of Fatally Injured Drivers, Traffic Safety Facts, National Highway Transportation Safety Administration, Nov. 2010, DOT HS 811 415 (Drug presence, as recorded in this study, includes and does not distinguish over-the-counter, prescription, and illegal drugs.).
 Kathleen Miles, Drugs & Driving More Fatal Than Drunk Driving in California, The Huffington Post, Feb. 29, 2012, available at http://www.huffingtonpost.com/2012/02/29/drugs-driving-california_n_1310718.html.
 A State-by-State Analysis of Laws Dealing with Driving Under the Influence of Drugs, NHTSA, Dec. 2009, available at http://druggeddriving.org/pdfs/WalshStatebyStateDrugLawsAnalysis811236.pdf.
 E.g., Illinois v. Caballes, 543 U.S. 405 (2005); Michigan v. Sitz, 496 U.S. 444 (1990)
 Coombes v. Florio, 877 N.E.2d 567 (Mass. 2007).
 Thomas E. Page, M.A., The Drug Recognition Expert (DRE) Response to the Drug Impaired Driver: An Overview of the DRE Program, Officer, and Procedures, Los Angeles Police Department Drug Recognition Expert Unit, available at http://www.ci.la.ca.us/lapd/traffic/dre/drgdrvr.htm.
 Curtis Krueger, Pinellas Judge: If You Use Oxycodone, You Can’t Drive, Tampa Bay Times, available at http://www.tampabay.com/news/article1208113.ece.
Center for Lawful Access and Abuse Deterrence
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