“COMBINATION” DUI CASES: ALCOHOL AND OTHER DRUGS –THE EXPLOSION OF NEW POLYDRUG ARRESTS

 By:  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 “drugs”

--- 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.

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>

            The phenomenon of increased impairment by combining alcohol and drugs is called “synergistic effect”.  A simple mathematical analogy helps explain “synergism”.

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 atrocious.

            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:

(1)               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).

(2)               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.

(3)               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 medications).

(4)               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.

(5)               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.

(6)               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.

(7)               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>, www.druglibrary.org/schaffer/Misc/driving/ddimp.htm, and

<www.cox-internet.com/dabster/slang.htm>.

(8)               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 subjects, see:

http://www.drunkdrivingdefense.com/general/bac.htm or use the interactive calculator for most test subjects found at:

<http://www.dot.wisconsin.gov/safety/motorist/drunkdriving/calculator.htm#use>

(9)               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.

(10)           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 arrest.

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.

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 alcohol.

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 acetaminophen.  Sources: 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 consuming alcohol].

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.