Do we really believe in the presumption of innocence?  When we drive down the street and see a citizen pulled over by a police car, don’t we say to ourselves "I wonder what he did?"  Are we not prone to presume someone guilty before innocent?  In many of my cases, it feels like the case begins with the presumption of guilt.  The officer presumes guilt.  The judge makes rulings that presume guilt.  It seems natural to presume guilt.  Here is a story about one of my many clients that was presumed guilty by everyone except him and his lawyer.  After a long hard fought battle, it was finally recognized that this man was not under the influence of any drugs or alcohol.  It was finally determined that this man was having a panic attack and could not think straight.  The attack had such an effect on him that physically he may have seemed impaired to an officer that presumed his guilt.  Well, I’ll tell you the end of the story before you here the story.  The DUI was dismissed shortly before trial.  The man pled guilty to a much lesser charge of Driving Recklessly, which probably was the correct charge in the first place.

DUI hard to swallow
Wednesday, January 10, 2007

By Jesse Fruhwirth
Standard-Examiner Davis Bureau

CLEARFIELD — Nearly half of all Americans take some form of prescription medication, and patients endanger themselves and others when they get behind the wheel while impaired, state officials say.

Ignoring the prescription warning labels of possible drowsiness can mean a charge of driving under the influence of drugs, regardless of whether a patient is using the drug legally and with a prescription.

Walter Wintle, bureau chief at the Driver’s License Division, said even use of over-the-counter drugs can and should be charged as a DUI if the drug impairs an individual’s ability to drive.

"Medications are a real problem in connection with driving," he said. "A lot of people are under the misunderstanding that if they have a prescription, they are allowed to legally drive while using the drug, (but) the law doesn’t differentiate whether it’s an illegal drug or a prescription drug."

The problem is, said Utah Highway Patrol Trooper Preston Raban, most drivers do not realize the severity of the crime they are committing.

"I have a lot of people who are using their drugs almost as prescribed. The problem is, they don’t read the thing that says they should not operate a vehicle," Raban said. "They don’t realize they just skipped two lanes down the road."

Proving impairment because of legal drug use, however, is not as easy as proving a driver is over the legal limit for alcohol consumption.

Of the roughly 14,000 DUI arrests made by UHP in 2006, 297 involved either legal or illegal drugs, Raban said. The state does not track how many individuals are suspected of DUI for legal drug use.

Jeff Cusick of Clearfield said he has been charged twice for driving under the influence of prescription drugs, most recently on July 27. He said he does not believe the drugs impaired his driving.

Cusick, 54, takes medication to treat an anxiety disorder. Occasionally, he has anxiety attacks similar to seizures.

With his recent arrest, he was pulled over for driving through an intersection too slowly. Cusick admits he was slurring his speech and performed horribly on field sobriety tests.

He passed the Breathalyzer test with no alcohol indicated. His blood test came back positive for Xanax, an anti-anxiety medication with warning labels that say users may become drowsy or less alert.

Cusick said he appeared unable to drive because getting pulled over prompted an anxiety attack.

"I was coherent enough to get home, but as soon as he stopped me, there went my heart rate back up," he said, "and everything else."

Davis County Attorney Troy Rawlings was one of the attorneys who filed charges against Cusick last summer in the Clinton city court. He said the field sobriety tests showed characteristics of drug impairment.

"The prosecution will argue that anxiety doesn’t cause your eyes to drag like that," Rawlings said.

Whether Cusick’s physical symptoms — slurred speech, lack of balance and slow eye movements — were caused by anxiety or Xanax will be for a jury to decide later this month.

In 2005, Cusick was arrested and charged with DUI under similar circumstances. His no-contest plea was resolved with a plea in abeyance negotiation. The DUI charge was dismissed with good behavior.

Cusick’s attorney, Glen Neeley, said what appeared to be the effects of a prescription drug was really the symptom of a panic attack. If drugs weren’t impairing Cusick, then Cusick shouldn’t be charged with DUI, he argues.

"They can try to charge him with reckless driving. … If he’s going out of his lane, they can charge him with illegal lane-change violation … but a DUI has such a consequence, it’s worse than a felony," Neeley said.

Drivers who take prescription drugs that may cause drowsiness or those who have health conditions — epilepsy and diabetes, for example — that may impair their ability to drive are required to report that information to the Driver’s License Division.

Wintle — who has not been involved in Cusick’s case — said applicants who disclose their health conditions are subject to more red tape. The problem is that relying on self-disclosure from drivers leaves room for dishonest answers, he said, which can lead to licensed dangerous drivers.

In 2005, 2,781 Utah drivers were reviewed for health conditions or prescription drug use. Most of those were self-disclosed, Wintle said, but some may have been referred by doctors.

Utah law protects doctors and other health-care professionals from reprisal if they choose to disclose their patient’s health information because they believe it may affect their ability to drive. They are not required to do so, however.

That should change, Wintle said.

"When a medicine that may affect driving ability is prescribed, the medical side should be required to bring that information to us," he said.

Michael Severance, a physician’s assistant at the South Ogden Center for Family Medicine, said he agrees that many drivers may not disclose health conditions or use of prescription drugs that may impair their driving.

However, he said, mandatory reporting may cause patients to not seek treatment if they believe it would put their driving privileges in jeopardy.

He said he has never disclosed his patients’ health information to the Driver’s License Division, but has taken different action when he knows a patient is about to drive unsafely.

"I did call the police when a patient tried to leave here. They were supposed to wait for a ride. We’ve done that a couple of times," Severance said.

Not all drugs affect everyone the same way, he said. Drowsiness is a possible side effect for lots of drugs, but many drivers will not be impaired by a medication that impairs somebody else.