"COMBINATION" DUI CASES: ALCOHOL AND OTHER DRUGS -THE EXPLOSION OF NEW POLYDRUG ARRESTS
William C. Head - Atlanta, GA
Over the twenty-eight years of handling DUI cases, the number of our law
firm's clients who were taking medication prior to drinking and driving
has steadily increased by 250% to 300%. From the earlier days of an
occasional Valium® user to today's plethora of mood-altering medications,
the trend is clear and disturbing. Based on our firm's interviews with
clients, both treating physicians and pharmacies are doing a poor job
properly warning patients about combining alcohol PLUS a wide variety of
--- prescribed and over-the-counter.
The proliferation of anti-anxiety, SSRI
[selective serotonin reuptake inhibitors] (e.g., Prozac®, Paxil® and
Zoloft®) and other mood-altering drugs has led to a significant increase
of "combination" DUI cases. The consumption of alcohol with many of these
prescribed medications causes an increased impairment of the subject
beyond the expected "impact" that either drug alone --- alcohol
or the prescribed medication
--- might otherwise cause. Unsuspecting medical patients who had
ingested prescribed medications are often clueless about the deleterious
effects of combining their new medication with another drug, alcohol.
Effexor (venlafaxine HCI)
Yes, alcohol is a 'drug', by every
scientific measurement and definition. As one writer has noted, alcohol
is "the most commonly used and widely abused psychoactive drug in the
country." Source: <http://www.gdcada.org/statistics/alcohol.htm>
phenomenon of increased impairment by combining alcohol and drugs is
called "synergistic effect". A simple mathematical analogy helps
Assume that a 120-pound female consumes two glasses of
wine in a one-hour span. For some drinkers, this amount of alcohol alone
may create a feeling of relaxation. Let's assign these two drinks an
impairment factor of 1 on a 10 scale (with "10" being the most impaired,
i.e. unconscious). If the same subject were taking 75 mg of Effexor® twice a day (a common SSRI), this would normally [without alcohol] create
a calming effect so as to make her more relaxed and less "anxious". Let's
assign a "calming" effect (depressant effect) of 1 on a scale of 10.
When BOTH the two glasses of wine AND the prescribed,
therapeutic dose of Effexor® are taken together, the combined impairment
effect is not 2 on a 10 scale. It would be more like 5 or 6
on a scale of 10. In many instances where two or more central nervous
system depressants are used, the effect is not additive; it
is geometric. In other words, the person would be severely
impaired or even comatose. Speech patterns would likely be affected.
Often, memory would be disrupted. In rare instances, especially when the
patient has just started taking the drug or increased the dosage, seizures
may occur, creating loss of consciousness or 'blackout'. Inhibitions
would be lowered markedly. Field sobriety evaluation performance would be
Medical professionals are well aware that it is extremely
dangerous to mix barbiturates, SSRI drugs or hypnotics and alcohol. What
would be a non-dangerous dosage of either drug by itself, can
interact in the body to the point of coma or fatal respiratory arrest. A
similar danger exists in mixing the non-barbiturate hypnotics (Quaalude®,
Doriden®, Neurosine®, Dalmane®, Noctec®, etc.) with alcohol.
Defense counsel must inquire of each new client about ANY
medications that were taken before or during the time alcohol was
consumed. Always ask for details on these issues:
Complete description of ALL medications,
including any herbal remedies, over-the-counter medications (including
aspirin, ibuprofen, or other analgesics), prescribed medications,
contraband substances and in "inspired" (inhaled) compounds (i.e.,
albuterol for asthma).
Establish a timeline for ingestion of BOTH the
alcohol and ALL drugs, herbs, inhalants, etc. Recent use of many
barbiturates or morphine-based drugs prior to or with alcohol will cause
an even more deleterious effect than if a medication is taken 12 to 18
hours before the alcohol is consumed.
Always determine HOW MUCH was taken at each
"dosing". You may find that the client "doubled-up" on his or her
medications for a variety of reasons. On prescribed medications and any
over-the-counter medications, obtain the dosage size of each tablet or
capsule or milligram (or cubic centimeters) amount (for liquid
Be certain to inquire into any illnesses or
"conditions" that the client may have had on the day of arrest. Often,
clients will forget that they had a "cold" or "stuffy nose" and were
taking antihistamines or Nyquil® (50 proof alcohol) all day and night.
Try to obtain detailed factual information from
the client on the events prior to arrest. Lack of memory or significant
gaps in the client's chronological account of the evening is often
consistent with extreme impairment.
For any prescribed medications, have the client
bring the containers to your office for purposes of examining the vials
and seeing what (if any) warning labels are affixed to the bottles. Look
for any labels that advise against consuming alcohol, or (even without
alcohol) advise to not drive heavy machinery.
Obtain a package insert from the pharmaceutical
company, a "PDR" (Physician's Desk Reference) summary or pharmacy printout
on the drug and look for warnings on combining the drug with alcohol.
Also determine the "classification" of the drug (benzodiazepine,
barbiturate, analgesic, hypnotic, etc.). Several online websites may also
help with your research. Try: <www.erowid.org>,
Perform a "Widmark" calculation on the alcohol
ALONE. This helps you to see if the estimated blood alcohol content ---
even without considering the drugs or herbal compounds --- could have
caused visible signs of intoxication. This is an essential part of
evaluating any case involving a 'refusal' to be tested (in states where
refusal is still allowed). For cases with a breath or blood test, you can
use the calculator to see if the quantity of alcohol reported by your
client matches the state's test. For an easy-to-use chart for most test
http://www.drunkdrivingdefense.com/general/bac.htm or use the
interactive calculator for most test subjects found at:
Inquire of the client about how he or she felt
on the night of this arrest versus other "similar" drinking episodes when
NO drugs were taken in combination with medications.
When in doubt about the combined effect of
alcohol and drugs, consult an experienced medical doctor, Ph.D. level
pharmacologist or Ph.D. level toxicologist or similar expert to assist you
in assessing the client's likely impairment on the night of arrest.
After going through these steps, you will be better
prepared to advise the client about his or her chances at trial. You can
also determine if a police report is consistent with the client's likely
level of impairment, or an exaggeration. Always review any videotapes
showing your client's condition at the time of arrest and interview any
sober passengers or friends who observed the client immediately before the
At the February, 2004 AAFS (American Academy of
Forensic Sciences) Annual Meeting in Dallas, one speaker noted that
between 1996 and 2000, abuse of oxycodone (a synthetic
opioid derived from thebaine, a stimulant product obtained from the opium
poppy) had risen 186%. In 2001 alone, there were 32,196 emergency
"mentions" on oxycodone, indicating widespread abuse of this pain
reliever. Oxycodone is the narcotic
ingredient found in Percoset® (oxycodone
and acetaminophen) and Percodan® (oxycodone
and aspirin). OxyContin® is used to
treat pain that is associated with arthritis, lower back conditions,
injuries, and cancer. It is approved for the treatment of moderate to
severe pain that requires treatment for more than a few days and available
by prescription only. Oxycodone has all the usual problems of
opiates: addictive qualities, withdrawal symptoms if discontinued, and a
tendency for the person to crave higher and higher doses as a tolerance
level to the drug is attained.
Wellbutrin (bupropion HCI)
In one case handled by the author, a post-surgical
client was out with his wife for dinner and a few drinks on Friday
afternoon following his first days back at work. They had hired a
babysitter and were enjoying a night together, meeting at their favorite
restaurant. After three total drinks each (two glasses of wine with
dinner and one gin and tonic after dinner) in a period of almost 4 hours,
the couple went to their respective vehicles to drive the fourteen mile
trip to their home. They had resided here eight years. When they were
departing, he remarked that his surgery was "acting up" and told her that
he was going to take one of his Oxycontin® tablets. Neither of them
thought anything of it.
The wife made it home fine. My new client was unable
to find the EXIT off the interstate, much less his home. He was 30 miles
from his home, driving poorly and aimlessly along the roadways of an
adjacent county. He was arrested for combination DUI alcohol and drugs.
His alcohol level was 0.06. Hence, one can assume that he was
dramatically affected by combining the drug with this small amount of
DUI defense counsel must keep up with the "science"
behind multi-drug impairment. Your client will look to you for answers to
case viability and unfavorable police reports and videotape evidence.
"Combination" impairment and the synergistic effects of consuming two
central nervous system depressants may provide answers to many questions.
However, the combined effects of two "drugs" are even
more pervasive. Most attorneys are unaware of common analgesics and pain
relievers having possible synergistic effects on many drinkers. Most
defense attorneys are unaware that common analgesics [(i.e., aspirin,
Tylenol® (acetaminophen), Advil® (ibuprofen), Naprosyn® (naproxen sodium)
or Orudis KT® (ketoprofen)] can combine with alcohol to INCREASE a
person's impairment level. A normal adult dose of these medications can
have the same "impairing" effects as a 0.04 to 0.06 blood alcohol level.
Source of information on this topic: <http://www.minerals.csiro.au/safety/drugs.htm>.
Also see this more complete description: <www.drunkdrivingdefense.com/general/non-prescription-medication-alcohol.htm>
Do not overlook these common compounds in trying to
explain to your client WHY he or she may have been "more impaired" than if
only the alcoholic beverages had been consumed. Many legal, illegal and
over-the-counter drugs, plus certain herbal medicines can COMBINE with
alcohol to created marked symptoms of impairment. See <http://www.scu.edu/wellness/top-alcohol.cfm>.
One additional health warning: Clients who
regularly take acetaminophen (Tylenol®) or ibuprophen (Advil®, Aleve® or
Motrin®) should abstain from alcohol entirely. Fatal liver damage can be
caused by alcohol consumption for persons who habitually use
www.vhl.org/newsletter/vhl1996/96bjtyle.htm and <http://dm.olemiss.edu/archives/97/9710/971006/971006N2alcohol.HTML>
[article also advises against use of ibuprophen within six hours of
Defense counsel must also be retrained about DUI-drugs
offenses because the prosecution has already retrained many of its top DUI
Task Force officers. The so-called "DRE" officers (drug recognition
experts) who have taken a 72-hour core curriculum followed by 200 to 300
hours of "lab" work in jails and hospitals have been trained on how to
evaluate manifestations and "signs" of drug usage for suspected impaired
drivers. Armed with a stethoscope, a pupilometer, a blood pressure cup, a
watch with a second hand (to take your pulse) and a digital thermometer,
these police officers are taught to identify and document SYMPTOMS of drug
use, in order to support an arrest and future prosecution for DUI-drugs or
"combination-DUI" cases involving both alcohol and drug ingestion.
The DRE course was originally started in 1990 by the
IACP (International Association of Chiefs of Police), but is now the joint
effort of NHTSA and IACP. Current objectives of the group are to create a
"per se" drugs crime for certain commonly-abused drugs, including
marijuana. Since 1990, almost 1 in 12 law enforcement officers have taken
this new training. Soon, all states will be presented with the same
blackmail choice as they were for adopting the 0.10 BAC level and later
the 0.08 BAC level---either pass laws to embrace the new crime of "DUI-per
se drugs", or lose critical federal highway funds.
The highly trained defense attorney must adapt his or
her practice to fit the growth in this area of DUI law. Failure to do so
leaves your clients at the mercy of the so-called new "experts" in drug
detection, the DRE police officers of America. To learn more about
advanced-level training for defense counsel, look at <www.DUIseminars.com>
or other national and regional seminars dedicated to addressing the new
science of polydrug DUI cases.