# Legal Prescription has unknown effects: DUI?
**URL:** https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179
**Category:** Miscellaneous and Personal Stuff I Must Share
**Created:** [October 18, 2018, 11:17pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179 "2018-10-18T23:17:02Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [October 18, 2018, 11:17pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/1 "2018-10-18T23:17:02Z")
I think I know the answer to this question and although it is inspired by a current case, it is only tangentially related to it. Suppose the following:
A person suffers from Depresanxiomania. He has been treated for it for years with moderate to good success, however lately he has relapsed into his illness. His doctor prescribes him Wonderex, a new drug, fully approved by the FDA and stocked in pharmacies. One of the side effects is confusion and/or disorientation. The fine print cautions one not to operate heavy machinery after taking (as do a lot of drugs).
He takes his first dose prior to going to bed that evening. His last memory is lying in bed. He wakes up in the hospital nine hours later. He is told that six hours after he last had a conscious thought, he was in a single car accident and the police were summoned.
He is told that he was awake and talking, yet appeared intoxicated and failed all field sobriety tests. Assume it can be shown beyond a reasonable doubt that Wonderex caused the impairment.
Is he guilty of driving under the influence? Should he be?
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### Author:  [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)
#### Post date: [October 19, 2018, 2:33pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/2 "2018-10-19T14:33:56Z")
IANAL…but I was under the impression that you _were_.
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### Author:  [@Bullitt](https://boards.straightdope.com/u/Bullitt)
#### Post date: [October 19, 2018, 2:44pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/3 "2018-10-19T14:44:18Z")
IANAL, but with DUIs I believe you have a presumption of guilt, or something like that. In this scenario my guess is Yes, guilty.
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### Author:  [@Falchion](https://boards.straightdope.com/u/Falchion)
#### Post date: [October 19, 2018, 2:55pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/4 "2018-10-19T14:55:26Z")
> [@UltraVires](#):
>
> Is he guilty of driving under the influence? Should he be?
I would think this would _probably_ fall within the debate over whether or not “involuntary intoxication” is an affirmative defense, which I gather is essentially a modified “legal insanity” defense. I guess there’s a pretty broad split among the various states on the availability of the defense, so the answer to “is he guilty” is going to depend on the jurisdiction.
One Pennsylvania court summarized the requirements for the defense as:
> [@](#):
>
> The defense of involuntary intoxication has been recognized in other jurisdictions in four types of situations: (1) where the intoxication was caused by the fault of another (i.e., through force, duress, fraud, or contrivance); (2) where the intoxication was caused by an innocent mistake on the part of the defendant (i.e., defendant took hallucinogenic pill in reasonable belief it was aspirin or lawful tranquilizer); (3) where a defendant unknowingly suffers from a physiological or psychological condition that renders him abnormally susceptible to a legal intoxicant (sometimes referred to as pathological intoxication); and (4) where unexpected intoxication results from a medically prescribed drug.
That court rejected the defense in that case (which involved mixing alcohol and prescription drugs, where the drug heightened the effect of alcohol), because the drinking was voluntary. I think your scenario falls into factor 4.
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### Author:  [@El\_Kabong](https://boards.straightdope.com/u/El_Kabong)
#### Post date: [October 19, 2018, 3:44pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/5 "2018-10-19T15:44:37Z")
So Roger O. Thornhill is off the hook after all?
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### Author:  [@Inigo\_Montoya](https://boards.straightdope.com/u/Inigo_Montoya)
#### Post date: [October 19, 2018, 5:22pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/6 "2018-10-19T17:22:38Z")
As a juror, I would push hard to acquit. Adjust your scenario for a case involving someone getting roofied. It would also be interesting to see how long it takes for a class action suit to get filed against the drug [del]dealer[/del] manufacturer
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### Author:  [@Loach](https://boards.straightdope.com/u/Loach)
#### Post date: [October 19, 2018, 6:06pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/7 "2018-10-19T18:06:32Z")
In my state there is no mens rea in our DWI statute. The affirmative defense of involuntary intoxication was rejected in an old court case. I don’t know of any more recent precedent.
> [@Bullitt](#):
>
> IANAL, but with DUIs I believe you have a presumption of guilt, or something like that. In this scenario my guess is Yes, guilty.
No presumption of guilt. I think you mean presumption of intoxication. For a DWI you have to prove two things, operation and impairment. Operation is obviously proving who was driving. Impairment is proving they are too intoxicated by their actions to drive safely. The per se part of the statute says you can’t drive with a BAC of over .08%. If that level can be proven then impairment is assumed.
> [@Inigo\_Montoya](#):
>
> As a juror, I would push hard to acquit. Adjust your scenario for a case involving someone getting roofied. It would also be interesting to see how long it takes for a class action suit to get filed against the drug [del]dealer[/del] manufacturer
No jury trials for DWI in my state.
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### Author:  [@Loach](https://boards.straightdope.com/u/Loach)
#### Post date: [October 19, 2018, 6:23pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/8 "2018-10-19T18:23:34Z")
If the OP is interested the case is State V Hammond 1990. The ruling is that involuntary intoxication is defined as an affirmative defense in the criminal code but not in the the motor vehicle code. Since it’s not in the motor vehicle code it can not be used as a defense. The case is certainly different than the example given but it covers the same defense.
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### Author:  [@xizor](https://boards.straightdope.com/u/xizor)
#### Post date: [October 19, 2018, 6:25pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/9 "2018-10-19T18:25:41Z")
An ex got into a fender bender and was charged with a DUI for having a therapeutic level of a prescribed muscle relaxer in her blood. Lawyer was unable to get the charge dismissed and she was found guilty. This was in the state of Tennessee.
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [October 19, 2018, 6:31pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/10 "2018-10-19T18:31:31Z")
> [@Loach](#):
>
> In my state there is no mens rea in our DWI statute. The affirmative defense of involuntary intoxication was rejected in an old court case. I don’t know of any more recent precedent.
>
> No presumption of guilt. I think you mean presumption of intoxication. For a DWI you have to prove two things, operation and impairment. Operation is obviously proving who was driving. Impairment is proving they are too intoxicated by their actions to drive safely. The per se part of the statute says you can’t drive with a BAC of over .08%. If that level can be proven then impairment is assumed.
>
> No jury trials for DWI in my state.
My state has not explicitly stated it but seems to imply strict liability for DUI much like your state. Although the law horn books imply that a defense of necessity might win the day. Suppose husband and wife have been drinking and husband begins viciously beating his wife and takes her phone. Her only means of escaping death or serious injury is to get in the car and drive away. The texts state that she would be excused from a DUI conviction. I support that view, but I’m not sure why a conscious, but necessary decision to drive drunk should prevail over a faultless DUI.
Nitpick to your second point. Proof of BAC above 0.8% is not presumptive or an assumption of impairment. It is per se against the law as a crime all by itself. I can prove that I was as sober as Billy Graham, causing no danger to the public, yet I am guilty.
I’m not sure, though why DUI is treated this way as a strict liability defense. Of course, the public in endangered nonetheless, but assuming the same circumstances, if I got a gun and shot someone, I would have an affirmative defense. It seems silly to allow it in the extreme case, but disallow it in the lesser.
In my state any crime with a possible jail penalty is triable by jury.
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### Author:  [@Loach](https://boards.straightdope.com/u/Loach)
#### Post date: [October 19, 2018, 6:42pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/11 "2018-10-19T18:42:34Z")
> [@UltraVires](#):
>
> Nitpick to your second point. Proof of BAC above 0.8% is not presumptive or an assumption of impairment. It is per se against the law as a crime all by itself. I can prove that I was as sober as Billy Graham, causing no danger to the public, yet I am guilty.
I think we are saying the same thing in different ways. You can be proven to be impaired under a .08% BAC through observation. The observations for impairment are not needed if you are above the limit. At least how I was taught is the presumption is that even if your gross motor skills aren’t greatly impaired, at .08% everyone is impaired at least in judgement and reaction time.
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### Author:  [@DrDeth](https://boards.straightdope.com/u/DrDeth)
#### Post date: [October 19, 2018, 6:48pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/12 "2018-10-19T18:48:19Z")
I would vote to acquit.
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### Author:  [@BobArrgh](https://boards.straightdope.com/u/BobArrgh)
#### Post date: [October 19, 2018, 7:44pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/13 "2018-10-19T19:44:21Z")
> [@UltraVires](#):
>
> Nitpick to your second point. Proof of BAC above **0.8%** is not presumptive or an assumption of impairment. It is per se against the law as a crime all by itself. I can prove that I was as sober as Billy Graham, causing no danger to the public, yet I am guilty.
(Bolding mine)
Nitpick: A BAC of over 0.4% is typically fatal. I know it is just a typo, but it was already quoted once.
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### Author:  [@Shodan](https://boards.straightdope.com/u/Shodan)
#### Post date: [October 19, 2018, 8:17pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/14 "2018-10-19T20:17:11Z")
I can’t see why he wouldn’t, or shouldn’t, be convicted of DUI. He took the drug after being warned via the fine print, and caused an accident. Guilty. If he had been involuntarily administered the drug, that would be different, but it isn’t.
Regards,
Shodan
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### Author:  [@Loach](https://boards.straightdope.com/u/Loach)
#### Post date: [October 19, 2018, 9:25pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/15 "2018-10-19T21:25:05Z")
> [@Shodan](#):
>
> I can’t see why he wouldn’t, or shouldn’t, be convicted of DUI. He took the drug after being warned via the fine print, and caused an accident. Guilty. If he had been involuntarily administered the drug, that would be different, but it isn’t.
>
> Regards,
> Shodan
Thank you I think I misread the OP in the beginning.
This is a known side effect. This is not a case of involuntary intoxication even if that defense was allowed in your state. It would be involuntary if it was a previously unknown side effect. He voluntarily took the drug. The side effect was known and published properly.
If I drank alcohol and blacked out and didn’t remember driving would I be guilty or not? The sticking point seems to be that it was prescribed. But the law doesn’t care if it’s prescribed only if it causes impairment. If you got hit by him you won’t care either.
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### Author:  [@DrDeth](https://boards.straightdope.com/u/DrDeth)
#### Post date: [October 19, 2018, 9:26pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/16 "2018-10-19T21:26:57Z")
> [@Shodan](#):
>
> I can’t see why he wouldn’t, or shouldn’t, be convicted of DUI. He took the drug after being warned via the fine print, and caused an accident. Guilty. If he had been involuntarily administered the drug, that would be different, but it isn’t.
The fine print warns you of a zillion things, many of which are quite unlikely. Even death in some cases.
Now if his MD had told him that that particular side effect was common and likely in his case, so dont take and drive, then I’d see your point.
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### Author:  [@Quartz](https://boards.straightdope.com/u/Quartz)
#### Post date: [October 19, 2018, 10:00pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/17 "2018-10-19T22:00:19Z")
It sounds like this is a good example for the availability of jury nullification.
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### Author:  [@Chronos](https://boards.straightdope.com/u/Chronos)
#### Post date: [October 19, 2018, 10:07pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/18 "2018-10-19T22:07:26Z")
While sober, he intended to take the drug and then go right to bed, which would have been a perfectly safe and reasonable course of action. His actions while sober all worked towards this end. If the confusion caused by this drug is sufficiently severe that this sober plan and action is thwarted, I can’t see how that’s the defendant’s fault. What was he supposed to do, have someone handcuff him to the bed when he took the drug?
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### Author:  [@Muffin](https://boards.straightdope.com/u/Muffin)
#### Post date: [October 19, 2018, 10:12pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/19 "2018-10-19T22:12:42Z")
It would depend on how M’Naghten has been developed in the jurisdiction at hand.
The person acted responsibly by following a doctor’s recommendation. There was nothing to suggest that he would go driving. By any reasonable derivation of M’Naghten he would not be convicted.
The laws in the various US jurisdictions are all over the map, so I wouldn’t venture to guess how this instance would be determined there, where the incarceration rate is insanely high – [one of the worst in the world](https://en.wikipedia.org/wiki/List_of_countries_by_incarceration_rate).
Up here in the the land of Polite Kanukistan, we have developed M’Naghten quite liberally, so in the circumstances at hand, the zombie driver would be found not criminally responsible due to a mental disorder (M’Naughten derivatives), and beyond our derivative of M’Naughten would not automatically be committed to the nut house (Swain).
A good example of this would be Shaun Davis, who suffered from depression, was prescribed some medications, and took to many of them when on a cross-country bus trip. One thing led to another, and eventually he grabbed the wheel of the Greyhound bus and rolled it, fatally crushing an elderly passenger’s head between the overhead TV and the roof, and injuring a couple of dozen passengers. At trial he was found not mentally responsible due to a mental disorder (paranoid psychosis), and was released.
The first bus tried to leave him at a gas station in butt-fuck nowhere, but the gas station did not want him, so the police (figuring that he would not cause any trouble) put him on the next bus, which he then rolled. The fellow I used to work for got him off of the criminal charge as per the above law. I cross-examined Greyhound at the coroner’s inquest (letting him on the second bus, not stopping the bus, no seatbelts, overhead TV). The fellow who led the charge in the civil suit against Davis, the police and Greyhound noted that “This wasn’t a crime of motive. It was a crime of psychological disorder,” which under Canadian law as set out above meant that Davis could not be convicted.
By all accounts, Davis was a good person who made ongoing efforts at keeping his head above water, but his mental health kept relapsing, and alcohol and drugs took their toll with each relapse. Eventually he ended up confined to the province’s highest security psychiatric institution – not because he was found guilty, but rather because he was found by psychiatrists to be a severe danger to himself and/or others. Had he been able to get it together, he would have been released.
He became engaged to one of his care providers, but prior to their marriage, he killed himself.
There was little but tragedy in the matter. A well loved grandmother was killed. A couple of dozen Christmas passengers were injured. A loved person killed himself after years of fear and anguish.
What lessons have been learned? The police have taken and continue to take a close look at how they should handle such situations, for institutionally the last thing they want to do is to contribute to harming people, although individually there are far too many bad blue apples. This matter, along with other such matters (e.g. the shooting death of Sammy Yatim on a streetcar and the tazering death of Dziekański in an airport) have led to a lot of work in area of police contact with people suffering from mental health issues. There is one hell of a long way to go in this area, but we’re moving forward.
What stands out about this matter? Our law is compassionate – not just toward the victims, but toward all involved. We can hold our heads up even when the shit is raining down from all directions, and by doing so we can work toward justice for all.
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### Author:  [@Muffin](https://boards.straightdope.com/u/Muffin)
#### Post date: [October 19, 2018, 10:22pm UTC](https://boards.straightdope.com/t/legal-prescription-has-unknown-effects-dui/823179/20 "2018-10-19T22:22:30Z")
The last time I woke from anesthetic, I mooned a nurse to complain about the hospital gown that was draped over me. Glad I wasn’t arrested.
The time prior to that, I slipped out of the recovery room in the hospital gown and into a cab that took me home. Glad that I did not have my own car at the hospital. 🙂
Meds can mess with your head, so IMHO the law should not arbitrarily shoot the victim of the meds. There is a world of difference between negligently and knowingly getting blottoed and going on a tear, verses responsibly taking appropriate precautions when taking medically prescribed medications. If the law does not recognize the difference, then the law is an ass.
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