By Dana M. Grimes, Esq.
What do Rush Limbaugh and Cindy McCain have in common besides too much money and philosophical differences with our President? A history of addiction to prescription medication. Our office often represents professionals, including doctors and lawyers, who are in trouble with the law because of their use of prescription drugs.
A defendant can be convicted of a DUI without having consumed a drop of alcohol. The same statute for driving under the influence of alcohol applies to driving under the influence of a drug, and California law does not distinguish between illicit, over-the-counter or prescription drugs. Proving a person is “under the influence” of a prescription drug is more complicated than proving alcohol intoxication, since there is no equivalent of the .08 legal limit and there is not a significant body of research on prescription drug use and its effect on driving. If a blood test of a defendant reflects a drug’s presence at a level that the prosecutor’s office believes can impair the ability to drive, it will charge the driver with driving under the influence.
We have had clients who have been involved in accidents after having an unexpected adverse effect to a change in their prescription drugs – these are typically conscientious people who were simply not aware their ability to drive was impaired. This is usually not a defense to a DUI charge. (However, when a person drives under the influence because he is not able to sense that he is experiencing side effects due to a hyper-reactivity to a new medication that does not normally impair driving, there is potentially an involuntary intoxication argument.) This defense extends back to the earliest days of the common law. Involuntary intoxication, it appears, “was first recognized as that caused by the unskillfulness of a physician or by the contrivance of one’s enemies.” [Annot., When Intoxication Deemed Involuntary so as to Constitute a Defense to Criminal Charge (1976) 73 A.L.R..3d 195, fns. omitted.]
A recent favorable case held that whether a defendant knew or had reason to anticipate that a medication could cause intoxicating side effects was a question for the jury. See People v. Holloway, (2008) 78 Cal.Rptr.3d 770. It is an unpublished opinion, and may be of questionable authority, but it offers a good analysis of the issue. [Although Mr. Holloway relied on the defense of involuntary intoxication, he conceded knowledge that his medications could cause drowsiness and could impair his ability to drive. However, it was still for a jury to determine whether the defendant’s knowledge that drowsiness could occur was enough to concede he had reason to anticipate the more extreme adverse effects he suffered.]
Unfortunately, psychiatrists and physicians occasionally gloss over the driving warnings when prescribing drugs and often the bottle itself will only say something vague like, “Use care when driving or operating heavy machinery.” Driving under the influence of prescription charges often involves accidents, which of course can cause injuries or death, so the stakes are high. This is because a driver under the influence of a prescription drug such as an anti-depressant or pain-killer is often several orders of magnitude more dangerous than the average drunk driver due to diminished motor controls and delusions.
Prosecutions for driving under the influence of Ambien (a common prescription sleep aid) are fairly frequent. A standard 10 mg dose of Ambien taken before going to bed should result in blood Ambien levels at or near zero after eight hours of sleep. However, some users experience unconscious sleep-driving. The sleep-driver may seem fully aware of his environment. He may carry on complex conversations and respond to questions or statements so that the observer, such as a police officer, understandably believes the driver to be awake. Though unconsciousness is theoretically a defense, it can be a difficult thing to prove in these scenarios.
Doctor Shopping And Prescription Fraud
It is especially sad to meet clients who were prescribed pain medication after injury or surgery and developed an addiction. People with legitimate pain issues can fall into a cycle of addiction to their pain medication. Cindy McCain has struggled with an addiction to Percocet and Vicodin, which she initially took to alleviate pain following two spinal surgeries, and continued to take (as much as 20 pills a day) to ease the emotional strain during the Keating Five banking scandal. She stole the pills from her non-profit medical relief organization, used the names of unsuspecting employees to get prescriptions, and had at least one of her non-profit organization’s doctors writing illegal prescriptions. This illustrates the great lengths people will go to when addicted to pain medication.
“Doctor shopping” refers to the practice of a patient requesting care from multiple doctors without the doctors knowing about each other. The patient does this to obtain more medication than any one doctor would prescribe. Patients who start doctor shopping often become dependant on larger and larger doses of medication and they sometimes start altering or forging prescriptions.
For instance, we represented a woman badly injured in a car accident who subsequently became addicted to pain medication. She was caught “doctor shopping” and videotaped bringing falsified prescriptions into a pharmacy. She was charged with 20 counts of Health and Safety (“H&S”) Code § 11173(a) (essentially obtaining a prescription by misrepresentation, fraud, deceit or the concealment of a material fact) and 20 counts of Penal Code § 459 (commerical burglary). Health and Safety Code § 11173(a) is itself a felony, and a burglary is committed when a defendant enters an establishment with the intent to commit a felony therein. Thus, anyone who takes a forged, altered or fictitious prescription into a pharmacy in an attempt to fill it is guilty of commercial burglary. Since the place where a pharmacy fills a prescription is inevitably inside of a building, a person entering a pharmacy to secure a fraudulent prescription will always be committing a second-degree burglary.
Another harsh aspect of these cases is that even though a more specific statute on point is arguably H&S Code § 11368, which punishes the use of forged, altered or fictitious prescriptions, such offenses are often filed under H&S Code § 11173(a), which punishes, among other things, the use of fraudulent prescriptions. This distinction has a difference, because a defendant convicted of H&S Code § 11368 is eligible for diversion, while a defendant convicted of H&S Code § 11173(a) is not. [The diversion statute, codifed in Penal Code §§ 1000 et seq., was amended by the Legislature in 1983 specifically to provide that diversion applies in every H&S Code § 11368 violation in which the drug is “secured by a fictitious prescription and is for the personal use of the defendant.]
There is case law to support the proposition that prosecution under a general statute may be barred when the facts of the alleged offense parallel the acts proscribed by a special statute. See, Estate of Mason (1990) 224 Cal.App.3d 634, *638 and People v. DeLaCruz (1993) 20 Cal.App.4th 955, *958. Moreover, allowing the prosecution to defeat the application of the diversion statute by charging H&S Code § 11173(a) arguably gives the prosecution the power to veto the application of the diversion statute in many personal use prescription fraud cases simply by artful pleading. The practical consequence of this is that people who use controlled substances such as heroin can be eligible for diversion which will protect their record, whereas a person who started taking Vicodin for legitimate pain reasons and became addicted to it may not be eligible for diversion just because of the way the offense was charged.
The potentially criminal side effect of prescription medication gives new meaning to Napoleon Bonaparte’s statement, “Medicine is a collection of uncertain prescriptions the results of which, taken collectively, are more fatal than useful to mankind.”
We have seen a number of drug overdose fatalities recently, involving people from affluent families who live in the nicest neighborhoods. We are involved in a case being investigated by homicide detectives who were investigating the sudden and unexpected death of a woman. At the time of her death, she was in a dispute with her husband, and a great deal of money was at stake, and the detectives were taking a real close look at the husband (our client). The autopsy report indicated that her death was accidental, she had consumed a moderate amount of alcohol and then taken a little more ambien than she should have. The medical examiner said that she went to sleep and simply did not wake up. This exonerated her estranged but innocent husband, but demonstrates the life threatening risk that people take when they take more medication than the amount prescribed, or mix medications and alcohol.
Vicodin (hydrocodone) was recently reclassified from Schedule III to Schedule II. The restrictions on physicians and pharmacies regarding prescribing, storing, and dispensing schedule II drugs, as well as the oversight by the DEA, is much greater than it is on schedule III drugs. Prescription drugs cause or contribute to more deaths than heroin and cocaine combined, and in one recent study in Southern California, hydrocodone was involved in more drug overdose deaths than any other prescription medication. Its risk has apparently been underestimated by some doctors, as it has been widely prescribed by general practitioners for relief of pain.
After hearing emotional testimony from parents whose children had died of prescription drug overdoses, lawmakers in Sacramento have urged the Medical Board of California to be more proactive in using CURES (the state data base for prescriptions of controlled substances) to identify doctors who prescribe too many controlled substances. To date, CURES has been used primarily to detect patients who are doctor shopping, or to get data in investigations of doctors who have been subject to a complaint for improper prescribing
The death of actor Phillip Seymour Hoffman to a heroin overdose brought attention to a tragic and unforeseen result of restrictions on dangerous prescription medications, combined with an increase in the availability of high purity, low cost heroin. Many young people, often from good families and with good education, have switched from prescription such as Oxyconton, to heroin. This has resulted in an epidemic of fatal heroin overdoses. The Oxyconton type drugs can be very dangerous, but the user at least knows the dosage he or she is taking. With heroin purchased from street dealers, the purity of the drug is impossible to predict. Many users inject the heroin, increasing the danger of a fatal overdose. Mexican drug cartels control the growing of heroin poppies in Mexico, the smuggling of heroin across the border, and the distribution of the drug throughout the US. In 2016, the price of heroin was going down and the purity going up in some large cities in the US as well as some rural areas.
The recent death of the singer Prince from an accidental overdose of the opioid fentanyl has demonstrated the lethal strength of that drug. It is 50 times as powerful as heroin. It is a schedule II controlled substance, which can be obtained with a prescription, although most doctors would be very cautious in prescribing it. There is also a black market for this drug, and it has been manufactured and imported into the US by Mexican cartels.
In 2018, the emphasis on drug treatment continues to grow. This is a good thing, but it has created a billion industry that has little regulation. There are some providers who are only in it for the money, and who want to maximize the number of people in treatment, for who insurance companies or the government can be billed. Now that doctors and pharmacies have been educated on the dangers of opiates like Oxycontin, and there is much more scrutiny of opiate prescription, there is much less overprescribing of these drugs. In some states the regulations have become so restrictive that doctors feel inhibited in prescribing sufficient Oxycontin types of drugs even to patients who have broken bones or who have undergone surgery.