A Different Kind of DUI

I have a client, we’ll call him Drake, who was charged with a DUI in Las Vegas involving Xanax. Drake has Lupus, an autoimmune disease, and one of the associated effects of this disease is social anxiety disorder. Because of this condition, he has been taking Xanax for several years. Though he has struggled with his health for years, Drake is a very positive person who remains optimistic about his future. I’ve previously never known anyone with Lupus, but I understand now that it can be very debilitating, and if anyone in this world has cause to complain, it’s Drake.

Drake spent eight days in the hospital for pneumonia that developed as a result of his Lupus.

If you have had the recent misfortune of being admitted to a hospital, you know that they try, as much as possible, to discharge patients as quickly as possible. Drake was indeed very ill, to be in the hospital eight long days. When he was discharged, the hospital prescribed a litany of medication, and told him to arrange to be picked up—this was a precautionary measure, as Drake was very weak physically.

The next day, Drake went to fill his prescriptions, but while stopped at a traffic light, fell asleep.

Officers happened to be in the area, and witnessed him (allegedly) sleeping trough two traffic light cycles. They woke him up, and according to the police report, Drake was disoriented and confused (surprise!). They did not smell any alcohol on him but because of their interaction with him, they directed him to perform field sobriety tests. Significantly, Drake passed the Horizontal Gaze Nystagmus Test (the look at my finger as I wave it in front of your face test), which measures an individual’s involuntary eye movement. However, he failed the Walk And Turn Test, and the One Leg Stand Test. As a result of failing two of the three tests, Drake was arrested and charged with DUI, Resulting From Drugs. They drew blood from him at the jail, and Drake got an overnight stay at lovely Clark County Detention Center.

When I discussed the police report with Drake, he made several points that would form the basis of our defense. First, although he freely admitted to being disoriented and confused, Drake said this was only because he had just woken up. The cocktail of medication he was on, which included Xanax, made him drowsy, but he was not told by any medical provider that he shouldn’t drive. Arguably, Drake should’ve thought twice about driving in his condition, but that does not a DUI make. He failed the two Field Sobriety Tests, but this was because he was still weak from pneumonia, and not due to intoxication.

Regarding the blood test, Xanax was found in his system, and as such, Drake was charged with DUI. Here’s where it gets interesting, at least from a legal point of view. Xanax is not a controlled substance for purposes of DUI cases, like cocaine, methamphetamine, heroin, or marijuana. That is, if a person’s blood has certain levels of those illicit substances, then he or she will be charged with DUI based solely on the presence of those drugs in the blood. Because Xanax doesn’t fall into this class of drugs, Drake could only be convicted of DUI if the amount of Xanax in his blood was beyond therapeutic levels or was such that it rendered him incapable of driving safely. In other words, Drake had to have so much Xanax in him that he was doing it recreationally and not therapeutically based on the amount in his blood, or he was in fact intoxicated on Xanax.

I told Drake all of this and he looked defeated. I was anticipating his next sentence was going to be something like, “Well, I do take too much of it,” or “I actually was feeling really buzzed on Xanax.” Nothing of the sort came. Drake was upset at the implication that he was abusing Xanax. He took responsibility for falling asleep and felt bad that he had put himself and others at risk of injury. The more he talked about it, the more he felt that the right thing would be to give up and just plead guilty to the DUI charge.

I explained to him that, yes, he did something wrong—he got behind the wheel of a car and fell asleep. Perhaps he should have known that might happen and should have made the decision not to drive at all. But that, I said repeatedly, is not the same thing as Driving Under The Influence. I told him the strengths of our case: that his medical issues prevented him from successfully performing two Field Sobriety Tests; that he passed perhaps the most difficult Field Sobriety Test; his disorientation and confusion were not a result of intoxication; and most importantly, the Xanax found in his blood was well within therapeutic levels. Based on our conversation, Drake no longer felt it necessary to simply plead guilty to the DUI charge.

Now to convince the prosecuting attorney. I argued to him that Drake was not using Xanax recreationally and the blood test result bore that fact out. I pointed out that Drake’s driving conduct and his performance on the Field Sobriety Tests weren’t a result of intoxication, but the medication (lawfully prescribed and taken) and his physical state. After much haranguing, the prosecuting attorney agreed to negotiate the case down to a 4-point moving violation. I then talked to Drake about the negotiation and he gladly accepted, rather than go forward to trial. I liked our chances of an acquittal at trial, but this was a very good negotiation, and as any attorney knows, anything can happen at trial.

I had a law professor who liked to say “If it looks like a duck, walks like a duck, quacks like a duck, then it’s a duck.” Most of the time when someone is charged with a DUI, it’s because he or she, in fact, committed a DUI. Most of the time, it is what it looks like. Sometimes though, you have a bird of a different feather.