And that, of course, is the point the state authorities want to make, but they miss one thing, there is no objective test for "drowsiness." Except in a few states that I am aware of that actually build blood concentration tests into the statute - however fallible due to the interplay with other substances, etc., - there is no equivalent of the presumption of non-impairment in "blowing under a .04"

And so what if my physician gives me 400 mg. of Provigil along with 30 mg. of Namenda (potentiated by Nuedexta)? The state could say that it's just like a drunk on cocaine: he's a wide-awake drunk. But unlike the labs tests they've run with alcohol and stimulants, for example, there's no evidence I'm aware of that supports the assertion that a person with "measurable amounts" of a controlled substance in his or her system - who feels fine (as in the comment Anita got from Delaware) - is necessarily impaired.

And therein (at least in theory) lies a violation of Title II the Americans With Disabilities Act. Specifically 42 U.S.C. § 12132. Discrimination:

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. [Emphasis added.]

See, also, 42 U.S.C. § 12131(1), "The term “public entity” means— (A) any State or local government; . . ."

But I acknowledge there are two hurdles to be overcome. First, there's the matter of whatever's buried deep within the Code of Federal Regulations. Secondly, the caselaw, which I have not researched. But at least as long as a party seeks only declaratory and injunctive relief, the 10th Amendment shouldn't be an issue against the states. See, Board of Trustees of The University of Alabama et al. v. Garrett et al, 531 U.S. 356, at 374 and n. 9 (2001):

Our holding here that Congress did not validly abrogate the States' sovereign immunity from suit by private individuals for money damages under Title I does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young, 209 U. S. 123 (1908).

http://supreme.justia.com/us/531/356/case.html

Mike


PS re Pharmacy Labels: The best label I've seen - and I concur - reads as follows:

This drug may impair your ability to drive or operate machinery. Use care until you become familiar with it's effect. [Emphasis in original.]

PPS to Jimbo: And what happens if you have the "unavoidable" 5 mph fender bender when the car making the right turn in front of you suddenly comes to a dead stop? (BTW: My 10 year average of tickets and/or chargeable accidents is unchanged for the decades immediately before and after getting CRPS, and my carrier still rates me as a "safe driver".) If a police report is required - as was the case the other day when a city owned vehicle backed into my son's car - what do I say if asked if I have consumed any drugs or alcohol? In a standardless (or truly "per se") world, if I cop to having taking Oxycontin the night before, I may be looking at a DWI without an available affirmative defense: see discussion of what may be essentially an existential test in prior post. Is that a result anyone wants?