It’s legal to drink and drive provided that the person is 21 years of age or older. It is also legal to drive if you are taking prescription or non-prescription over the counter drugs for which there may or may not be an age requirement.
While there are different levels of impairment, alcohol, legal or illegal drugs can all cause it. A person who drinks alcohol before driving can’t normally assert a “mistake” defense unless there is some evidence the person didn’t know that they were consuming alcohol. This is known as the involuntary intoxication defense and it normally doesn’t apply in situations involving alcohol.
This defense would also not apply to cases involving illegal drugs unless, again, the defense could present evidence that the person didn’t know that he or she was consuming the illegal drug (i.e. something slipped in their drink or food). The mistake defense, however, may apply to prescription and non-prescription drugs. Prosecutors normally refer to this as the “entitlement defense” because the defense will typically argue that the person didn’t know anything was wrong and that there was a valid excuse for the impairment. Unfortunately for the defense however it is not an element that the prosecution must prove in DUI cases. The fact that a person was on a prescription or non-prescription drug will only help the defense if it can establish that the person reasonably believes that the drug would not cause impairment. A mistake defense for prescription and non-prescription drugs therefore must assert that the individual had an actual and reasonable belief that the drug would not cause impairment. This defense focuses on the Mens Rea element of a criminal offense. The prosecution is always required to establish an Actus Reus and a Mens Rea. Actus Reus is the physical act while Mens Rea is the mental intent to commit a crime.
The prosecution will attempt to negate a mistake defense by focusing the judge on jury on the unreasonableness of the defense. The prosecution will typically make its argument based on the following:
- The length and depth of a defendant’s experience with the drug found in his system at the time of the arrest;
- Whether the Defendant followed the directives of his doctor in taking the medication (dosage, timing, other drugs);
- The warning labels on the medication;
- And warnings from the doctor or the pharmacist;
- Whether the defendant made his doctor aware of other medications at the time of the prescription.
The mistake defense will only be successful if your attorney can convince a judge or a jury that it was reasonable. It is therefore important that your attorney have answers to address the prosecution’s arguments regarding the medication, its warnings, and your understanding of its warnings based on meetings with your doctor and the label information. Simply stating that “I thought I was ok to drive” is not enough for this defense. Your attorney needs strong evidence to make a proper mistake argument.