Have a DWI trial coming up where the defendant had positive blood for diazepam only (therapeutic level shows in the test result). Defendant "claims" he was prescribed the drug for panic attacks/depression (have yet to see a prescription) and also claimed on the video to be suffering from a panic attack at the time of the stop. If I have a DRE expert testify but she does not hold up and testifies D may have failed the FST because of the panic attack, will I be able to get past a directed verdict?

Doesn't even occur to you that he is likely telling the truth, given the therapeutic level of valium and absence of anything else, does it? Well, it does, but it doesn't matter.

Don, that's a pretty harsh thing to say without knowing all the facts of the case or what evidence the original poster has reviewed.

So you have evidence of poor SFST performances, and of a drug that matches that performance, and have been presented with a defense of panic attacks as an explanation for both.

What was the driving like? Doesn't Diazepam come with a warning not to drive until you're sure you know how it affects you?

Assuming the defendant is telling the truth should he be driving if he knows he has panic attacks, has treatment for them, and knows he is at risk to the point where he cannot perform SFSTs (especially given that SFSTs as divided attention tasks relate to operating a motor vehicle)? Perhaps by driving knowing he is susceptible to these factors, and assuming the evidence you've got in front of you fits, your defendant is guilty of the offense of deadly conduct.

If you're relying heavily on your DRE and have some fears as to whether his testimony will be enough you might spend some time visiting with the DRE and exploring what he knows, what he can say, and what he can't say. What are his concerns about the case as presented? How far does he think his opinion can go? You may or may not agree but that might give you a better picture of your case.

Even a therapeutic level of a drug could impair your mental and physical faculties. Just because the doc prescribed it, doesn't mean a person is a safe driver while taking it. I would not focus on what the drug was, or whether the dosage was "therapeutic", but his divided attention tests.

What time of day? What was the destination? All important to the officer's determination. If he didn't smell like alcohol and still failed SFST's the officer must have felt pretty sure he was impaired by something.

What did your HGN say? Of all the excuses for HGN I've heard, I've never heard that it can be caused by panic attacks, but again, I would check with some SFST trainers, etc.

HGN is a particular type of Nystagmus, and it is only caused by certain things; namely CNS Depressants, Inhalants, Dissociative Anesthetics and trauma to the brain.

Diazepam is a CNS Depressant.

Please, let's not confuse medical conditions that might cause Nystagmus with things that cause HGN.


John B. Lyons
SFST/DRE Instructor

In some cases when we have had blood tests and the allegation of intoxication revolves around prescription medication, we have sent the lab results and/or the blood to a lab in Dallas called Accu-Chem Laboratories. They have been able to provide a quantitative analysis of the sample based on the levels of medication in the defendant's system. They will also testify as to whether or not the individual was intoxicated based on the levels of the medication. I can provide a contact number if you send an email to me.

It may be a harsh thing to say but it also fits with everything the rest of you guys have said. Maybe there is something that should be done to get the guy's attention and let him know that he shouldn't be driving, even if he has a legitimate medical condition, if it causes his driving abilities to suffer. But she wants a DWI conviction. DWI laws were all made with the given that a person intentionally drinks, then drives, theoretically knowingly endangering lives. And you are all going to tell me that it doesn't matter, something like this is the same thing. And you are right, according to the law. But must we always suspend common sense in favor of the letter of the law? Well, yes, if convictions are the name of the game.

Actually, the DWI laws were meant to keep people who temporarily do not have the normal use of their faculties from driving and potentially hurting other people on the road. That's why the law is written to include ANY substance, including prescription meds, and doesn't have a mental state requirement. If the guy was truly having panic attacks, then that's one thing, but if he's taking medication that means he should NOT be driving but he is anyway, that's absolutely what the DWI laws are meant to control.

Some places have restricted driving with a cell phone for the same reasons. The motivation isn't about the specific substance in your blood... its about the negative impact on your driving.

All day long you can tell me that DWI laws are not specific to alcohol. I teach DWI classes, am a Licensed Chemical Dependency Counselor, and have done this for 20 years. I know about the "normal use of faculties", etc. What I am saying is that when legislators make laws about DWI, they are not setting penalties with anything but drinking and driving in mind. Drinking a case of beer and a 5th of bourbon and getting in your car and going out and running over somebody is NOT the same thing as driving down the road and having a diabetic episode, and running over somebody, even if you knew you had diabetes when you got in the car. If a person got 2 DWI's because of a medical condition, and they were on probation, they would have to take my DWI Intervention class in which I talk endlessly about alcohol addiction, much like the counseling I do with alcoholics in general. But you are right, because you guys are always right. Thanks for letting me play on your blog again.

Diazepam is generic Valium. The prescription instructions indicate to avoid or use caution when operating vehicles or heavy machinery. Choosing to drive a vehicle under the influence of a substance that has been prescribed and included cautions and directions is just that - a choice. Choices have consequences, which is one reason we have these laws to begin with. If it's causing impaired driving, then that choice garners a DWI. Choice = responsibility, novel, I know. Use common sense instead of the letter of the law? Seems as though the defendant is the one who abandoned common sense.

quote:

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Originally posted by Don:
What I am saying is that when legislators make laws about DWI, they are not setting penalties with anything but drinking and driving in mind.

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Penal Code Sec. 49.01. DEFINITIONS. In this chapter:
* * *
(2) "Intoxicated" means:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.
* * *

Don, if everyone had common sense, we wouldn't need laws. Prosecutors don't have the luxury of "common sense" with our cases. We seek justice and leave the "common sense" decisions up to juries. If this was solely a medical issue, Kim wouldn't be able to meet her elements. The impairment must come from the introduction of alcohol, a drug, etc. into her system. She has that. Even if there was a medical issue possibly occuring contemporaneously, Kim has scientific evidence that diazepam had been introduced into her defendant's system and (presumably) evidence of impairment. Kim, you may have a difficult trial ahead of you with the panic attack red herring, but you can get past a directed verdict.

Don, why all the anger? I thought we (prosecutors) and you (treatment providers) might be considered to be on the same side. You say you know the whole "loss of the mental and physical faculties" aspect of the law, but it sure seems you disagree with it.

If someone is on medication and charged with DWI, then what you are talking about is a punishment issue. If it was an honest mistake, then a light punishment is in order. See, we are not all high and mighty. Chill my friend.

quote:

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Originally posted by SAProsecutor:
Don, why all the anger? I thought we (prosecutors) and you (treatment providers) might be considered to be on the same side. You say you know the whole "loss of the mental and physical faculties" aspect of the law, but it sure seems you disagree with it.

If someone is on medication and charged with DWI, then what you are talking about is a punishment issue. If it was an honest mistake, then a light punishment is in order. See, we are not all high and mighty. Chill my friend.

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+1

SAProsecutor: Not angry. A little jaded. You seek justice and leave the common sense up to the jury? And tell me again, I forget, what is the percentage of DWI cases tried by a jury? We are on the same side, except I am not a politician. Maybe you don't want to be either, but reality dictates it. I know you are not all high and mighty, but you are overrepresented in the "high and mighty" population. The administrator of this blog just made my point by cutting and pasting the law. I already told you I knew that. It was the absolute supremacy of the LETTER of the law that I was arguing about in the first place. I could never by an attorney, OR a politician, because apparently I don't communicate very effectively. Peace

Well, now. Isn't the whole point of having the letter of the law so that people have notice of what is expected and what is illegal? Except now you're arguing that there is an unwritten part of "common sense" that says it's not really illegal if these certain conditions apply. I agree that there are circumstances under which the letter of the law has been violated, yet the person or the act demands some form of mercy. Not every violation of the law requires a hammer or conviction. However, sometimes, when it's a close call and the facts justify it, perhaps a jury should be trusted to make that decision, rather than having it fall on one person (e.g., a prosecutor). The jury, after all, is also the voice of the people, and when it is uncertain how justice should most effectively be served, we ask the people what they think. It's not necessarily seeking *convictions* when prosecutors go to trial, it's also testing the evidence by advocating for it and determining community standards by the outcome of the trial. IMHO. Also look at it from a prosecutor's perspective: as an example, if they didn't prosecute any DWI cases in which it was shown that the person was on Rx meds, and someone on Rx meds kills someone, don't you think you would have media outrage at the fact that the DA routinely rejected those kinds of cases? Sometimes, you're damned if you do, damned if you don't.

I like your style Don. It takes nothing less than a person who is not an attorney to get prosecutors all defensive about what they do and why. As prosecutors we are supposed to relate to jurors and help them understand the law sometimes. In reality, most prosecutors approach the game with a "Gosh, don't they get it" attitude. I realize these discussion boards are dedicated to prosecutors and law enforcement, but would it kill anyone to have a discussion sans legal speak.

Don, what you are talking about is discretion. I use my prosecutorial discretion all the time. I make judgment calls so that a jury doesn't have to hear a case. Sometimes my judgment calls allow a jury to determine what is to be a violation of the law or not.

You say you don't think we are all high and mighty and then in the same breath you act as if we are. I don't get it. On this DWI case, it's the prosecutors discretion whether to go forward or not. It needs to be pointed out to you because you don't seem to get it: DWI was intended to stop people from drinking AND/OR from having substances in their bodies which cause them to not be normal. You gotta be normal when you drive.

Seems to me that we're wasting our breath with Don. If he does in fact have the education and experience he claims, then it seems he should be sharp enough to understand the distinctions we are all making. The principles are not difficult to grasp and don't require any 'legal speak'. If you knowingly ingest any substance that can and does impair your driving ability, you fall under the DWI laws. It's that simple. The law has nothing to do with a disease (diabetes); it only deals with substances.

Arguments would be so easy to win if we could all just make up the facts as we go along. To claim that the legislators were only concerned with alcohol is ludicrous. Did that language about all the other substances fall in there by accident?

It's obvious that Don doesn't agree with the law. But instead of writing his representatives or engaging in a reasonable discussion in this forum, he makes personal attacks and besmirches our collective ethics. Like Ron White said, "You can't fix stupid".