DUI: Prescription drugs, illegal drugs, and breathalyzer tests

When a police officer stops a driver and arrests that driver for DUI the officer usually makes the arrest with the assumption that the driver has been drinking, but it is possible to be convicted of DUI in the absence of any alcohol consumption. The Florida DUI statute provides that a driver is guilty of DUI if that driver is under the influence of alcohol “or any chemical substance” set forth in chapter 877.111 or “any substance controlled under chapter 893” when affected to the extent that the person’s normal facilities are impaired.  These drugs listed in these chapters include, but are not limited to: OxyContin, Oxycodone, Valium, Vicodin, Flexeril, Percodan, Percocet, Xanax, and, of course, street drugs like marijuana, Crystal Meth, Crack, Cocaine, Heroin, mushrooms, and acid.


As a Tampa DUI attorney I have represented a driver who, after falling asleep at a red light, and staying parked for several light cycles, drew the attention of a police officer. Let’s face it, if you are asleep at wheel, it’s noticeable. When the officer approached, my client said something like “Officer, I haven’t been drinking at all. I’ve been taking prescription drugs, but it’s okay, I have a prescription”.  THIS IS A HUGE MISTAKE. Oftentimes drivers believe that the existence of a valid prescription for the drugs provides a safety net against a charge of DUI. It doesn’t. Having a prescription does not mean that it’s okay to take so much of the drug that you are impaired and cannot safely operate a motor vehicle.  After all, alcohol is perfectly legal for those over the age of 21, but you’d never say to an officer “I’ve been drinking, but I’m over 21, so I legally obtained the alcohol.”

Tampa DUI Attorney

Once you say to the officer “I’ve been taking prescription drugs” the officer may, depending on the surrounding circumstances (for example: being asleep at the wheel), have reason to suspect that your normal faculties are impaired, even though the impairment is not due to alcohol. Sometimes this also leads to a search of your person, or your vehicle which may uncover illegal drugs, or prescription drugs for which the driver has no prescription.  Now all of a sudden you go from thinking there is no way you will be charged with DUI, to facing a DUI charge and a possession charge.


The breathalyzer/intoxilyzer reveals the presence (or absence) of alcohol, which is, of course, a drug.  But the breathalyzer does not provide any feedback relating to other drugs.  A person impaired by something like Xanax or Vicodin but who has had absolutely nothing to drink, would blow a 0.00


Something any Tampa DUI attorney will tell you that this is exactly why it’s NOT A GOOD IDEA to say “I’ve been taking prescription drugs, but it’s okay, I have a prescription.”
Once you’ve blown a 0.00, in the absence of any incriminating statements like “It’s okay I have a prescription” or “I’ve been smoking pot, but I haven’t been drinking” (ALSO A BAD IDEA), you’ve made the arresting officer’s job much more difficult.  Most officers know very well how to conduct a DUI investigation when it’s clear that alcohol is involved, but many times the officer is at a loss, once he determines that alcohol is not involved . Some officers are unsure as to what testing he is permitted to request, and few have the list of chemicals set forth in 877.11 or 893 committed to memory.  Sometimes they do not know what to do next. You are not required to help them figure out what chemicals are in your system. My mother used to say “Sometimes nothing is the best thing to say, and often the best thing to do.” If you are being arrested, sometimes nothing is the best thing to say, and often the best thing to do.


The safest course of action is to never put yourself in this position to begin with. Don’t drink and drive, don’t take prescription drugs and drive, and don’t take illegal drugs and drive. However, if you should ever find yourself in the unfortunate position described above, never forget that the burden of proof lies with the State of Florida.  You are not required to prove sobriety. The State is required to prove beyond, and to the exclusion of, any reasonable doubt that the defendant committed the offense with which he (or she) has been charged.  When you volunteer certain information to the officer, you are helping the officer do his job, which is to provide the prosecutor with evidence needed to convict you of a crime.  In other words, you are doing the prosecutor’s job for him when you admit to committing a criminal offense.

If you have been charged with a DUI involving prescription drugs, illegal drugs or a breathalyzer, please contact Tampa DUI lawyer James Adams at (813) 874-9116. The initial consultation is free.