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Posted by Jenna M. Fliszar, Esq. | Apr 10, 2014 | 0 Comments

This is the final post in a series examining DUI of lawfully prescribed medication. In Part Two, I told you about a woman who came into my office, frustrated because her attorney wanted her to enter into ARD for DUI charges despite the fact that it would ruin her career and she maintained she was innocent. Her driving was perfect, she had no alcohol in her system, and the only drugs found were lawfully prescribed antidepressants and migraine medication. Part Two ended with a denied continuance, a rejected plea deal and a new DA.

Immediately upon taking the case, the new DA began demanding that we provide her with my client's medical records. We had already provided a note from her treating physician stating that all the meds were prescribed and he never saw any indication of side effects or abuse, so I refused to ask for the medical records. They weren't necessary in light of this letter and the fact that everything was within therapeutic range, a clear sign that they weren't being abused. Also, my client didn't want a DA going through all her personal psychiatric and PCP treatment. When I refused to obtain the records, the DA started issuing subpoenas to the pharmacy. What blew my mind was that the pharmacies turned over the records without any consent from my client. How they thought this didn't violate HIPAA privacy rights, I'll never know.

At the time of the trial, the DA asked for a continuance so she could obtain an expert opinion on my client's impairment. Despite previously denying my request for the same thing, the judge granted the DA's continuance request. After that, the DA continued to issue subpoenas, and when the doctors wouldn't turn over the records she wanted because they didn't have consent from the client, she went over everybody's head and got a search warrant under the guise that she wanted to see if the client was abusing her meds.

In the meantime, the DA tried to get me to provide her the name of my client's doctors and pharmacy and also obtain all of her medical records and supply them to her expert. To me, this was a huge invasion of my client's privacy and there was no way I was handing that information over. Plus, the DA had no right to force my client to go out and get evidence that could be used against her; it's unconstitutional. When I again refused to request the information she wanted, she filed a Motion to Compelwith the court and asked the judge to force me to get her the information. Thankfully, the judge saw how unconstitutional this was and denied the motion. However, he did grant yet another continuance for the DA so she could continue her crusade against my client and obtain more medical records and an expert report.

Because of the time all this took, we were able to secure an expert who wrote an opinion for us. When I had a conversation with him, he told me he thought it was absolutely criminal that they were coming after my client and that he just didn't see any evidence of impairment. He couldn't understand how the case even got this far. We submitted his report and supporting documents to the DA and she passed that on to her expert.

About a week later, the DA called me and said that her expert would not be able to opine that my client was impaired by her medications. Therefore, they were withdrawing the DUI charge. Instead of just letting the entire case go, though, she told me they'd be amending the charges to careless driving and a headlight infraction. I told her there was no way my client was pleading to careless driving, as the dash cam clearly showed her driving was perfect. The DA said she would have to review the tape again; she did, and agreed with me they couldn't prove careless driving, but she was going to keep the headlight infraction. My client agreed to plead guilty to that charge.

A couple weeks ago, she entered her plea. After all that, she received a $25 fine. But the damage has already been done. My client no longer has any faith in our justice system. She had to spend thousands of dollars on attorney and expert fees. This has been on her record all this time while she's been applying for jobs. She lost out on at least one because they saw the charge when they ran a criminal background check. Her medical privacy rights have been violated. And none of this even begins to account for the emotional toll this has taken on her and her family. And for what? All because she took legal medication as prescribed to her by her doctor. She eventually received justice, but how many out there don't?

About the Author

Jenna M. Fliszar, Esq.

Bar Admissions Pennsylvania United States District Court for the Middle District of Pennsylvania Additional Training Practitioner, Standardized Field Sobriety Testing Instructor, Standardized Field Sobriety Testing Drug Recognition Expert Training Forensic Chromatography Training Ad...

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