Could I be Arrested for DUI by Taking my Prescription Xanax?

The short answer to this question is, yes. According to the Illinois DUI statute, one can be arrested, charged with, and convicted of driving under the influence, for being impaired by the use of legally prescribed drugs. The relevant portion of 625 ILCS 5/11-501(a)(4) provides "[a] person shall not drive or be in actual physical control of any vehicle within this State while…under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving." Our Illinois DUI statute adds that "[t]he fact that any person charged with violating this Section is or has been legally entitled to use… other drug or drugs…shall not constitute a defense against any charge of violating this Section." 625 ILCS 5/11-501(b).

In DUI prescription drug cases, investigating officers are seeking evidence that can be used against the motorist in court to sustain a conviction. Just as in other DUI cases, the National Highway Traffic Safety Administration (NHTSA) approved battery of field sobriety tests (HGN, Walk and Turn and One Legged Stand) will be utilized by the officer. Chemical testing may also be used to show the presence of the drug in question in the motorist’s bloodstream. The defense can counter by proving that the defendant was lawfully using a prescribed drug. That would be a defense to 625 ILCS 5/11-501(a)(6) which provides "[a] person shall not drive or be in actual physical control of any vehicle within this State while…there is any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of…" cannabis, methamphetamine, and other listed controlled substances or intoxicating compounds. The "lawful use" defense would not be successful for a violation of the (a)(4) statute. In that statute the question is whether or not the prescribed substance, even though lawfully prescribed, caused a person to drive unsafely. In these instances, a person often does not appear outwardly drunk like a person who has been drinking but rather can appear tired or lethargic. Often slow or deliberate movements are claimed to have been observed by the arresting officer.

What the motorist needs to be concerned about, is providing the information the officer will be relying upon to make an arrest and secure a conviction. Oftentimes the motorist’s own statements provide the most convincing evidence. Statements about prescriptions making one tired, groggy, confused, can and will be used against the defendant in court. One should be polite and cooperative with any police officer. One should not provide false responses or lie to a police officer. After that it is best to ask for a lawyer then remain silent. Freely offering information regarding the taking of prescriptions may not be the most prudent course of action. Especially if one is seeking to avoid an arrest.

For more information about this or any other area of criminal or traffic law, please contact attorney James Doerr, at (847) 705-7555 or jdoerr@lavellelaw.com.

James Doerr is a member in good standing of the American Association of Premier DUI Attorneys and the National College for DUI Defense, Inc.