OUI can be committed by a person who has consumed zero alcohol. Anyone who drives under the influence of intoxicants commits OUI, and intoxicants are defined to include both alcohol and drugs. A person is deemed to be under the influence of intoxicants if the person’s mental or physical abilities are impaired to the slightest degree by alcohol, drugs or a combination of alcohol and drugs. When a police officer investigates a person for OUI, the officer will nearly always ask whether the person has taken any medications and, if so, what medications. People sometimes think that if the officer believes any perceived impairment is caused by prescribed medications instead of what they’ve had to drink everything will be fine. In other words, people sometimes have the impression that it will benefit them to tell the officer about their prescription medications. Actually, they should invoke their right not to answer any questions about prescription medications, because the information is damning, not exculpatory.
If an officer suspects that a driver is under the influence of drugs, prescription or otherwise, the officer will likely have the person examined by a so-called drug recognition expert (DRE). DRE’s are police officers who are trained to determine what category of drug or drugs might be causing impairment. Remarkably, the DRE’s opinion is nearly always that the person is under the influence of a drug within the category of drugs the person admitted taking. Once a DRE determines that a person is impaired by drugs, a blood or urine sample is collected and the sample is sent to the State lab. The State lab tests for drugs within the category or categories of drugs suspected by the DRE. Call me skeptical, but I suspect that the analytical abilities of the typical DRE are drastically undercut when the suspect doesn’t provide the DRE with the answer to the question in advance.
People should understand that if an officer believes he or she sees signs of impairment, and the officer can establish that the person has taken a prescription drug, and the lab confirms that the drug is present in that person’s blood or urine, it doesn’t matter that the person did not feel impaired or believe he was impaired by his prescription medication. OUI does not have a mental element. In other words there is no requirement that the person must know he or she was impaired. If impairment is established by the officer’s testimony and a chemical test shows the presence of the drug that the officer suspected was the source of impairment, grounds are established for a BMV license suspension for operating under the influence of drugs. And if the evidence satisfies a judge or jury in a criminal trial that the person was under the influence of his or her prescription medications and drove, whether the person was aware of the impairment or not, the crime of OUI is established too. So, don’t answer any questions about prescription medications. DRE’s purport to be trained experts, and a highly trained expert shouldn’t need a cheat-sheet to get the answer right anyway. Above all, don’t think you’re home free in an OUI investigation just because you’ve had nothing to drink and have only been taking your prescription medications as prescribed. To completely blend metaphors, loose lips sink ships, and you might find yourself being bitten by a dog that was wagged by its tail.