Interviewer: I want to switch gears here and ask about over‑the‑counter medication. Obviously, very popular. My question is can over‑the‑counter medication such as cough syrups, cough medication, diet pills, will they ever factor in with a DUI case?
Nathan: Absolutely. There’s two types of over‑the‑counter medication. Obviously, there’s the type that you need a prescription for and the type that you don’t. Yes, absolutely. You can receive an OWI ‑ driving while under the influence of medication or drugs ‑‑ even though, you have a legal prescription to receive them.
The Accuracy of the Tests Can Always be a Factor
Interviewer: I believe NyQuil is a pretty popular cough syrup. This is a pseudoephedrine cough syrups. Will this have an impact on a test?
Nathan: Not traditionally. You don’t necessarily see that. Our drug testing in our state is accurate enough where it will tell you what type of medication or drug is in your system, where you’re not going to see the over‑the‑counter sort of NyQuil. You’d have to have that mixed with something else to really cause an issue, at least in terms of impairment, unless you just took way too much of it.
Interviewer: You did touch on this before, but just to clarify. Just because a medicine that’s prescribed by your doctor that does not mean you will not be charged with a DWI or OWI in Wisconsin, correct?
Nathan: No, absolutely not. This is the forefront of DUI defense, as far as I’m concerned, in the state of Wisconsin. There is a big gap here. I try a lot of prescription medication cases. Our state used to have what were referred to as therapeutic ranges for prescription medications. That is I go to the doctor, they prescribe me a medication, I take that for an illness or something that effect of that I have.
Therapeutic Ranges No Longer Matter
Therapeutic range is exactly what it sounds like. It is a range of that drug or medicine that you can have in your blood where you are getting the therapeutic effect of it. If you go over that range…hypothetically, let’s say it’s 1 to 10. If you have 11 of that in your blood then the state can say you are being impaired by that drug.
However, the problem and the scary thing in our state is that we have now moved away from therapeutic ranges, which means that it doesn’t really matter the level that you have in your blood. If the state thinks that you are impaired by physical observations the amount of a medication in your blood will be irrelevant, because they can come in and testify that you were impaired by it. It’s scary.
In the Eyes of the State There is No Medication
Interviewer: What are the dangers of prescription medication intoxication? How is that determined by an arresting officer?
Nathan: Let’s get one thing perfectly clear here, at least, out in the front. In the eyes of the state, there is no such thing as medication. It is a drug. You will never hear a state analyst say that it is a medication. It is a drug to them. There are dangers for taking prescription medications. Obviously, if you miss the wrong prescription medications you could have a problem there.
A lot of these medications come with labels that say do not drive or operate heavy machinery. Others come with do not mix with alcohol. Prescription medication impairment is determined through blood testing, doing a drug panel, determining the amount of that specific medication or drug in your system and whether or not there is physical impairment attached to it.