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

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.

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?