pain medication and functioning
 

Recently I had an argument with my attorney about the fact that I have to take pain medication and should not drive. He stated truck drivers do it all the time. I stated that I was not going to be responsible and have it on my concousines by driving with pain medicine in my system and hurting someone else. Not to mention it is concerned a DUI in Delaware. I would like to get others feedback on their opinion.
anita

I think anytime a person feels impaired - by any means- booze, rx drugs or illegal drugs- even severe migraines or flu - they should not drive.

I'm not sure why you argued with atty about it, your treating dr would be the one to make that call if needed.:confused:
Did you want it written down or documented that you cannot drive?
Wouldn't you rather have the option open to drive if you needed too?

I was trying to get the point acrossed that when the barametric pressure changes, I have to increase my meds and it is not safe when I can't see straight. As it is now I can only drive with my left foot because it hurts to push the gas and brake with my right. For some reason he is not grasping that I have RSD.

What does your doctor say about driving? Why is your attorney involved?

I'm with Jo*mar on this one, and I'll add it might not be wise to drive with your left foot either. I don't know how the traffic laws are written regarding this, but there's likely some technicality you could be cited for (maybe something to ask the attorney :rolleyes:).

There are many articles on driving while on various medications, and they are (pardon the expression) all over the road (sorry - couldn't resist :rolleyes:). One could probably be found to support any position, and it's pertinent, especially with long-term pain medication patients who need to and can drive safely (and test accordingly).

But overriding all, whether on medication or not, if a person is impaired in any way, and/or does not feel they can safely drive, whether tired, sick, in pain, emotionally upset, or whatever the reason.... they shouldn't.

Doc

I have been in TWO catastrophic MVA's neither of which did I have any right to live through.
Nobody should drive impaired, it's bad enough that we have lost souls (don't know where they're going), those not paying attention for multiple reasons, and it runs the gamut.

I just wanted to make this comment, that so many of us have RSD, TOS, TBI, Discs, and broken bones, and DEATHs, due to MVA.s Some, many of these 'accidents' are completely avoidable, if it weren't for the 'human condition'! I suppose, that's why we call them accidents....

Be safe, buckle up, if you're lost put on your flashers and pull over, and drive defensively, never aggressively!

Be Safe!

Pete

asb

my doctor as said nothing, except if it hurts dont do it. I have an attorney because my injury started when I fell at work and ended up with over 5 fractures. My pain medication, esp. breakthrough, if I have to take alot to get through in the morming I can't even see the TV, is how messed up I am, then I throw up the rest of the am.
I do fine on long term, but the short term gets me, everytime and I absouletly refuse to hurt or kill another human being because they want me to go to work.

That doesn't sound right...
 

I don't know what you're on (nor do I need to) but IMO, that warrants talking to your doc about for a possible change.... Just my $.02

Doc

Sounds like you need a new lawyer.

Dear Alt1268,
I agree with Sandy you do need another lawyer. I cannot believe an officer of the court would want you to get behind a truck while taking pain medication...He/she is an idiot. Ask him/her if he can write this information down and have it notarized so that if you should do as he suggests then he will be responsible for ANYTHING that could happen. I'll bet you will see him change his mind real quick haha. My best friend's husband is a truck driver for NY so I will ask them tonight what he thinks about that statement. Also, I thought you might want to look up the DMV for DE and find out their thoughts on the matter. You can prob check online for that type of stuff. Still, you do need a lawyer because now you know he does NOT have your best interests at hand. He only wants to settle the case so he can be paid. Watch out for him. Another thing he wants you to drive with your left foot!!!!!!!!!!!! I had initial trauma in my right foot and have not been able to drive because of pain (I can't bend my foot). I pray it would not be a manual tranny otherwise you would run out of feet to drive lol. I'll post when I find out things from my friend for you.
Take care,
kathy d

Just putting in my thoughts. Even driving with the SCS on is considered driving impaired. My son, who is an attorney. stated that he would probably have a hard time defending a case like this (he specializes in criminal defense). I absolutly refuse to drive with my precious grandson. Lisa

Alt,
After reading your original post I need to chime in.
Your attorney is right but also flat wrong. I used to be a trucker and I know the D.O.T. prohibits driving while taking certain drugs even if prescribed. I also know some drivers do it anyway. That don't make it right!
If a drug effects your ability to operate a vehicle in a safe manner you're liable to get a D.U.I. This is one reason that you have to have a prescription drug in it's original container. If the drug is unsafe to operate a vehicle or machinery it's labeled so. And they do check, trust me...

Maybe they differ depending on the particualr medication and state laws. I don't recall ever seeing a label that says, "unsafe to operate a vehicle or machinery" (but they could exist); around here the wording is, "Use care when operating a car or dangerous machinery" which is open to broader interpretation.

Doc

Thank you for everyone's thoughts on my issue. I agree with everyone's thoughts good and bad. Delaware law says if you get caught its a DUI and I am not going to risk loosing even more then I have already lost. Nor will I have a guilty consciouness about hurting someone else or worse killing them or myself.

I don't know if I can get another attorney, being that I have had this one for a little over 2 years. But this week, as really made me think of whether he has my best interest at hand.

Thanks again. Anita

What is Drugged Driving?
 

From the National Institute on Drug Abuse, NIDA InfoFacts: Drugged Driving, What is Drugged Driving?

Some States (Arizona, Delaware, Georgia, Indiana, Illinois, Iowa, Michigan, Minnesota, Nevada, North Carolina, Ohio, Pennsylvania, Rhode Island, South Dakota, Utah, Virginia, and Wisconsin) have passed “per se” laws, in which it is illegal to operate a motor vehicle if there is any detectable level of a prohibited drug, or its metabolites, in the driver’s blood. Other State laws define “drugged driving” as driving when a drug “renders the driver incapable of driving safely” or “causes the driver to be impaired.”

In addition, 44 States and the District of Columbia have implemented Drug Evaluation and Classification Programs, designed to train police officers as Drug Recognition Experts. Officers learn to detect characteristics in a person’s behavior and appearance that may be associated with drug intoxication. If the officer suspects drug intoxication, a blood or urine sample is submitted to a laboratory for confirmation.

Check out the full article, it's pretty good, and current through December, 2010, although it would have been nice if it included a list of the prohibited drugs in the 17 "per se states." http://www.drugabuse.gov/Infofacts/driving.html

I for one am happy not to live in a "per se state." Meaning, I believe, that it remains the state's burden to prove impairment. Hence the officer training to record (among other things) behavioral evidence of impairment/intoxication.

Mike

PS to Anita: please note that Delaware appears, in fact, to be a per se state. If this is correct, I don't know where your attorney could possibly have been coming from.

PPS For those of you who do live in "per se states," it would be good to know to how many of your pain management physicians (or pharmacists) advised you of that fact, before handing out presumably "prohibited" drugs.

See the following for a list of prohibited drugs in "per se" states.
http//druggeddriving.org/legal.html.

Sorry Mike-sounds like California is next.

Having a prescribed drug doesn't release you from being responsible...

I wasn't trying to say that. Only that after ten years at this, with a 20 mg. Oxycontin at night, 10 mg. of Baclofen and 0.5 mg of Xanax (a bezodiazipine) in the morning, offset by a mere 400 mg. of Provigil, I KNOW I am not impaired for driving that morning in the least, and my doctors concur. Now, 600 mg. of Neurontin (which probably doesn't even make most lists) and a glass of wine would be another story altogether.

To criminalize driving with merely a measurable amount of any legal drug in your bloodstream, without regard to the actual concentration, is insane!

Mike

to per se or not, that is the question
 

I'm sorry, but the site appears to be of dubious value, where its principal authority is a publication of the American Prosecutors Research Institute ("produced thanks to a charitable contribution from the Anheuser-Busch Foundation"). http://www.ndaa.org/pdf/drug_toxicol...ecutors_04.pdf Of course a per se standard is the easiest way of assuring prosecutions, but it's built on an assumption that's not supported by the medical literature: that any measurable amount of certain drugs in your system makes you an unsafe diver. But the only reason they take the position in the first place is because they don't want to go to the burden and expense of setting precise limits through verified medical studies standards and relatively exacting testing, in order to set and enforce limits, as we have done with alcohol. And, as set forth below, Nevada has apparently done with certain NON-OPIOID controlled substances.

But a matter of convenience to the state does not make a criminal statute constitutional in the presence of a less intrusive alternative. And none of this web-site's cited cases on constitutionality are to the contrary, or for that matter, have anything to do with per se standards.

Finally, having looked at what little was in their link, I highly doubt that California will be next to take the plunge. And if it did, it would be my pleasure to be part of a class action seeking immediate declaratory relief on the federal constitutional question in the courts of the Ninth Circuit. And to that end, based on the table Ballerina kindly brings to our attention http://druggeddriving.org/legal.html#table please note that Nevada's statute is ANYTHING BUT PER SE: it lists the specific concentrations of each drug that would put someone over the limit, even heroin!!!

DITTO OHIO AND VIRGINIA!!!

Mike

PS And just so there is no misunderstanding, I'm not disagreeing with a friend, only her cited authority. :grouphug:

This was my point when I said you can find articles to support any position.

I don't know how they could even go about setting limits based on amounts of certain drugs in someone's system. It's not just the presence, and it's not the amount either; it's the effect it has on the person's judgment, reflexes, cognitive functions, etc. Abusers/recreational users (those using for the "high" or psychotropic effect) are the real problem - not legitimate pain patients with established tolerance. Impairment can also stem from emotional stress, fatigue (lack of sleep), pain.

It would make more sense to devise a portable field simulator to test driving ability, but that might open the political hotspot of re-testing elderly drivers, and that may be getting a little :Off-Topic:

Doc

Ok so then with me living in a state that will throw me in jail. Because an officer says how can I get a job outside of the house when I need to have pain medication to even live or at least be half way sane

Dear Anita -

This is something that should be brought to the attention of your state senator and representative/assemblyman/woman, as well as the chairs and staff directors of what may be loosely referred to as the Committees on Health and Public Safety of both legislative bodies.

For more resources, see/contact the following organizations, among others:

American Pain Federation http://www.painfoundation.org/

RSDSA (ask for Jim Broatch) http://www.rsds.org/index2.html

University of Wisconsin - Pain & Policy Studies Group http://www.painpolicy.wisc.edu/ And here's their contact link http://www.painpolicy.wisc.edu/contact.htm They are highly knowledgeable and I've found them perfectly willing to talk to me about difficult public policy issues involving pain medication: and this one certainly qualifies.

And if you really feel steamed about this (as you should) contact the local affiliate of the American Civil Liberties Union (ACLU) http://www.aclu.org/affiliates to see if they might be interested in filing suit on your behalf, presumably in federal court, at no expense to you: ask to speak to a staff attorney. In the same vein, check out the Disability Rights Advocates:

Disability Rights Advocates focuses on high impact-litigation to protect the civil rights of people with all kinds of disabilities throughout the nation. DRA represents people with disabilities in over 50 active cases, most of which focus on public accommodations and services, education and employment rights, health care access, high stakes testing and other key activities of mainstream life. The following areas are the most representative of DRA's work to protect the rights of people with disabilities and ensure their full participation and opportunities. . .

http://www.dralegal.org/cases/index.php And see http://www.dralegal.org/cases/public_entities/index.php for a list of the transportation related cases they have handled.

God's speed.

Mike


PS Something in my bones says that the Third Circuit Court of Appeals and its district courts, which include Delaware, may be an attractive place to bring litigation on your behalf. But a word to the wise: no such action could probably be brought in federal court - on your behalf - after you received a citation under the statute.

Thanks mike I will ESP being that I had a modified job until. I got put on a rollabout. They even let me leave before storms. Now nothing

I take a tremendous amount of pain medication and it does not effect my mental state at all because I have been taking it for so long. I feel safe driving from that standpoint, however, the pain and cramps I get in my legs from the rsd/crps are another story. A half hour trip is my limit because of what it does to my legs & back.

That being said, Everyone is Different and you should not drive if you feel impaired. That is the important point. No one can say how you react to your meds but you and if you feel impaired, you should speak to your dr and ask him/her to write a note saying you should not be driving. I also agree that you need a different attorney. This one will screw you and cut a deal with the defense. I have been through a wc lawsuit and know.

Good luck.

Ask your doctor to write it up you can not drive my dd doctor wrote it up that she can now wear a seat belt so everytime we get stop I just show them the letter.

calracci,
I sent my lawyer the new law regarding dui which includes prescription, he states he was not aware. I am begining to think I am getting screwed and that he is working for a pay from the defense. I will post in a new thread however.
thanks anita

reply from state authorities to dui and prescription meds
 

I got a reply today from the state. They say it is for medications that impair a persons ability to drive. So if you have been taking medications for awhile and have built up the tolerance you are fine. It's the one's that still make you feel like a drunk.
I have also contacted the aclu and ada about the discrimination issue.
Thanks for your help in pointing me in the right direction.

doing the heavy lifting I should have done earlier
 

Dear Anita -

You are too gracious thank me for pointing you in the right direction, towards the right continent may be more like it.

Among attorneys, it's said that the first rule of statutory construction is "to read," while the second rule is "read on." Well silly me for not bothering to look up the Delaware statute, which you did. And heads up people, because this applies to most of us, in one degree or another. It turns out I missed the fine print, under most state statute's it appears to be okay to drive using controlled substances, so long as, you (1) are using them in the manner in which they are prescribed, and (b) are not "under the influence of any drug." Delaware Statute § 4177. Driving a vehicle while under the influence or with a prohibited alcohol or drug content; evidence; arrests; and penalties [Effective until July 1, 2012]:

(a) No person shall drive a vehicle:

(1) When the person is under the influence of alcohol;

(2) When the person is under the influence of any drug;

(3) When the person is under the influence of a combination of alcohol and any drug;

* * *

(b) In a prosecution for a violation of subsection (a) of this section:

(1) Except as provided in paragraph (b)(3)b. of this section, the fact that any person charged with violating this section is, or has been, legally entitled to use alcohol or a drug shall not constitute a defense.

* * *

b. No person shall be guilty under paragraph (a)(6) of this section when the person has used or consumed the drug or drugs detected according to the directions and terms of a lawfully obtained prescription for such drug or drugs.

c. Nothing in this subsection nor any other provision of this chapter shall be deemed to preclude prosecution under paragraph (a)(2) or (a)(3) of this section. [Emphasis added.]

In other words, in a prosecution under (a)(2) [driving under influence of drugs] or (a)(3)[influence and drugs and alcohol] an Rx is no defense if you are driving "while under the influence," which is defined in paragraph (c)(5):

"While under the influence" shall mean that the person is, because of alcohol or drugs or a combination of both, less able than the person would ordinarily have been, either mentally or physically, to exercise clear judgment, sufficient physical control, or due care in the driving of a vehicle.

http://delcode.delaware.gov/title21/...09/index.shtml

Which, it turns out, is nothing but a round about way of saying the same thing that Section 23152 (a) of the California Vehicle Code expresses in a single sentence:

It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.

http://www.dmv.ca.gov/pubs/vctop/d11/vc23152.htm

That is not to say however that all states necessarily treat this the same, see, e.g, Arizona Statute § 28-1381:

A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.

http://www.azleg.state.az.us/ars/28/01381.htm

Q: Is "impaired to the slightest degree" the same thing as when "because of alcohol or drugs or a combination of both, less able than the person would ordinarily have been, either mentally or physically, to exercise clear judgment, sufficient physical control, or due care in the driving of a vehicle"?

A: That would be up to the cases of the appellate courts of the two states, but at first blush they look a lot alike.

But then contrast that with the standard for alcohol as set forth, for instance, in Arizona Statute § 28-1381(G):

In a trial, action or proceeding for a violation of this section or section 28-1383 other than a trial, action or proceeding involving driving or being in actual physical control of a commercial vehicle, the defendant's alcohol concentration within two hours of the time of driving or being in actual physical control as shown by analysis of the defendant's blood, breath or other bodily substance gives rise to the following presumptions:

1. If there was at that time 0.05 or less alcohol concentration in the defendant's blood, breath or other bodily substance, it may be presumed that the defendant was not under the influence of intoxicating liquor. [Emphasis added.]

http://www.azleg.state.az.us/ars/28/01381.htm

In other words, with a prescribed drug, an almost existential question is asked: after taking this drug, is the driver really and truly as good a driver - in every conceivable way - as s/he would have been without the medication. But when it comes to just a couple of beers, you're fine!

Little wonder then that the Anheuser-Busch Foundation sponsored the publication of the National District Attorneys Association's "Drug Toxicology for Persecutors: Targeting Hardcore Impaired Drivers." http://www.ndaa.org/pdf/drug_toxicol...ecutors_04.pdf

Mike

In short there's no defense for using a prescribed drug if there's a notation
on it ''May cause drowsiness. Alcohol may effect." Which would be labeled on the vile when you receive it and computer noted by the pharmacist in his/her's records. Any law enforcement could find this out. It's your responsibility to know this. Therefor you're fully responsible...

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?

I had one accident before I was diagnosed just about a year ago while wearing a Fentanyl patch. I had been given them in the ER a few days before that along with an increase to 8mg of dilauded every 6 hrs, despite no one knowing what was wrong with me...

Next thing I knew, my car had hit another parked one on a residential street and my original whiplash injury was reminded why my body had RSD in the first place with another whiplash.

I was basically kicked out of aquatic therapy two months ago because I told the therapist I was in too much pain not to take pain medicine but did not feel safe driving if I took it. Since I couldn't make it to therapy a few times in a row because of that, I was removed from the program.

At this point, I just don't feel anything is worth risking anyone's life for me to drive while using pain meds. That said, I also know that some I have a higher tolerance for then others such as Tramadol but that is the limit.

RSDS.org
 

I noted today there is now a section about driving under the rsds.org website, research section.

Do what feels right to you and follow the law
 

It sounds like you're noticing a real impermanent of motor and perhaps even mental skills that's because of your medications. Common sense says why would you want to hurt yourself or anyone else if you're feeling this disconnected when driving?

What I'm finding odd is that you're noticing such a huge difference now that you're taking these pain medications. I'm on 3 kinds of morphine (including an internal pump) and have never once felt mentally diminished once. I see on TV all these people who have severe reactions when they're taking pain medication yet I've never felt anything other than a little sleepiness when I first started to take them that lasted only around 2 weeks. My doctor explained that my pain is literally eating the medication hence the reason I've noticed no difference with my mind or body even though I'm on quite a truckload. Maybe your dosages haven't been set quite right?

I'm pleased that your taking personal responsibility for the difference you feel now that you're on pain medication but I know I'll fight tooth and foot to not loose the freedom of driving even though I've already lost body parts and a few other things that don't make it near as easy as it once was. Only you know your capabilities. It's nice to see someone who cares about being safe. This proves you'll make the right choice. You don't need validation from any attorney or doctor when you've got this much common sense already working for you. You'll make the right choice, don't worry.