Many people wonder whether they can drive under the influence of an over the counter drug. The answer is no, not yet.
On Monday, February 4, 2013, the Oregon House of Representative's Judiciary Committee will be holding hearings regarding HB 2114 and HB 2115. Both bills relate to DUI law in the State of Oregon, and both bills are bad for Oregonians. I will be testifying in the hearings, in opposition to these measures, as a representative of the Oregon Criminal Defense Lawyers Association (OCDLA).
HB 2115, linked here, would change the definition of intoxicants as it relates to DUI. Currently, Driving Under the Influence of Intoxicants includes alcohol, controlled substances, or an inhalant. This new bill would create a new section of the vehicle code defining an intoxicant as intoxicating liquor, controlled substances, inhalants; or "any other drug...that adversely affects a person's physical or mental faculties to a noticeable or perceptible degree."
The problem with this is that "drug" is a very broad legal term, including "substances (other than food) intended to affect the structure or any function of the body of humans or animals." Most of the things we ingest, that aren't food, are intended to affect the function of our body. Coffee, nicotine, Ibuprofen, allergy medication and ginseng are all examples of things people ingest on a daily basis which shouldn't impair their ability to drive, but all are drugs.
In addition, the new bill would seem to limit the application of "intoxicants" to a drug that "adversely affects a person's physical or mental faculties. But there is no such list of substances that places a user on notice of what they should be doing regarding alcohol, controlled substances and inhalants. It's pretty safe to assume that a person shouldn't drive after huffing chemicals. With controlled substances, we follow our doctors' instructions. With alcohol, we know the limit for driving is either a .08 blood alcohol content, or when we start to feel the effects of the alcohol (impairment). This new bill would provide no notice to drivers as to what conduct is lawful, and what's not. Would it be lawful to drive after your kids kept you up all night, so you have a couple of cups of coffee in the morning before work? The entire purpose of you drinking that coffee was to wake up with a little jolt of caffeine. How about those eye drops the doctor gave you that cause dilation of the pupils? It's probably not controlled, but the whole purpose was to adversely affect your pupils and it's a drug. Even if you put sunglasses on, under this proposed law, you shouldn't drive.
Also, if convicted of driving under the influence of coffee, ibuprofen, nicotine or ginseng, or upon going into diversion for that kind of DUI you'd have to get an ignition interlock device, which can't test for those things.
In short, HB 2115 is a terrible bill because none of us are on notice of what our conduct should be under this law. Its enforcement will be subject to the whims of officers who think they notice impairment due to trace amounts of legal substances. It just defies common sense. So, for now, you can't committ the crime of DUI by driving under the influence of an over the counter medication, and I'll be in the legislature on Monday to make sure that you can't. But I highly encourage readers to call their legislators, click here to find your legislators, and tell them what a bad idea this is!