A 37-year veteran of the Minnesota Attorney General’s Office and staunch proponent of aggressive DWI laws may have been guilty of breaking Minnesota’s DWI laws without even realizing it. His story highlights the absurdity of Minnesota’s prescription drug DWI laws, a story about Minnesota’s Prescription Drug DWI Laws that we've discussed here in the past.
Here's what you need to know: It is a crime to drive a car in Minnesota with schedule I or II narcotics in your system –
1. even when you have a prescription, and
2. even when you are not impaired in any way.
Lucky for Minnesotans, the Legislature realizes that this is absurd – that’s why it is an affirmative defense to the criminal charges to prove that you had a valid prescription.
However, the Legislature missed the boat on one key point; even with a valid prescription, you will still lose your license if you have any of a wide variety of prescription drugs in your system. See our previous blog post about DWI-Drugs for more about the law (but that’s not required reading). But here are the two relevant statutes:
The crime of DWI includes:
It is a crime for any person to drive, operate, or be in physical control of any motor vehicle… when: (7) the person's body contains any amount of a controlled substance listed in Schedule I or II, or its metabolite, other than marijuana or tetrahydrocannabinols.
Minnesota Statute, Sec. 169A.20, Subd. 1 (emphasis added).
The law also requires the Commissioner revoke one’s license to drive for the same conduct:
[T]he person submitted to a test and the test results indicate … the presence of a controlled substance listed in Schedule I or II or its metabolite, … then the commissioner shall revoke the person's license or permit to drive….
Minnesota Statute, Sec. 169A.52, Subd. 4(a) (again, emphasis added)
The Road to Hell is Paved with Good Intentions
Want a concrete example of how crazy these current DWI laws are? Last week during a Minnesota DWI Task Force meeting Joel Watne, the retired assistant attorney general we referenced at the start of this blog, attempted to justify the current DWI prescription drug law by telling his own story. According to this story, Mr Watne underwent a surgical procedure and a doctor prescribed him a pain killer – “oxy,” I believe he said. Knowing that it was a crime to drive while having a Schedule II drug in his system and that he would lose his license, he described how a 37-year veteran of the attorney general’s office would make sure he was not breaking the law:
“I stopped taking the medication before I drove.”
Makes sense, right? Mr. Watne’s situation is not unique – thousands undergo routine surgery every year, and are prescribed pain medication. But here’s the thing: how could Mr. Watne know that the oxy was no longer detectible in his blood or urine? One member of the DWI Task Force pointed out that it is not only a crime to have the drug in his system, but it is also a crime to have a metabolite detected, and metabolites can stay in your system for days.
While it would be difficult to estimate the amount of time oxycodone (oxycontin®) would have been detectible in Mr. Watne’s blood or urine, we do know that as oxycodone metabolizes it can be found as morphine for a much longer period of time! (We’ve defended cases like this in other contexts, but the pharmacology is fascinating.)
The Rest of the Story…
The irony is this: Mr. Watne would never intentionally do anything to violate the law, particularly Minnesota’s impaired driving laws – he was partly responsible for drafting many of them. But he may have very well violated them, despite the best of intentions, and without ever posing any risk to himself or others.
If Mr. Watne continues this behavior he could find himself involved in a traffic accident someday with dire consequences. If officers see a prescription bottle and Mr. Watne is a bit dazed (from the accident), they could force him to submit to a blood or urine test that exposes a controlled II prescription drug in his system, either some form of oxy, or (even worse) morphine . . . which he did not even take!
He would need a hell of a good attorney and a forensic expert to help him prove he took a pain narcotic in accordance with his prescription that metabolized into morphine, and he was not impaired. If successful we might be able to get Mr. Watne acquitted of criminal charges, but under the current law, it would be impossible to save Joel Watne’s driver’s license.
Could Joel Watne one day be our client? Unless and until the Legislature changes the absurd consequences of our DWI law, and allows drivers to at least try to provide proof of a valid prescription to defend against a license revocation, the chance exists.