Prescription drug impaired driving charges

Even if the medications were prescribed by a doctor you can still be charged and convicted of impaired driving.

A doctor’s note may have the power to exempt a person from certain responsibilities at work or school, but it isn’t a “get out of jail free” card when it comes to impaired driving charges. Some people are under the false impression that if a doctor prescribes a medication (whether classified as a narcotic or not) it absolves them of criminal liability should they break the law since they were just following the doctor’s orders.

When it comes to impaired driving, it doesn’t matter whether the drugs were prescribed by a doctor or not, it is still illegal to drive high.

Section 320.14 (1)(a) of the Criminal Code broadly states that it is illegal to drive while impaired by any form of drugs or alcohol.

It doesn’t matter if the drug is completely legal such as an over the counter medication or if the person has been legally prescribed it by their doctor. If it impairs their ability to drive they are breaking the law and subject to being charged with a DUI offence in Canada. The penalties for driving while high on prescription drugs are the same as for drunk driving or cannabis impaired driving. This means at a minimum the accused will receive a criminal record (conviction) if they are found guilty.

While the Criminal Code/Regulations have specific provisions relating to alcohol, cannabis, GHB, and other narcotics, this does not mean other drugs that are not specifically listed are legal to consume and drive.

The Criminal Code's Blood Drug Concentration Regulations (SOR/2018-148) specifically list numerous narcotics such as LSD, PCP, heroin/opiates, shrooms, meth, ketamine stating that the blood concentration level must be zero. Some tolerance is codified for low levels of alcohol, cannabis and GHB. Some people may wrongly confuse this to mean that prescription and OTC medications that are not specifically listed must be legal to drive while under the influence of.

It is a criminal offence to drive while impaired regardless of whether the specific drug(s) in your system are explicitly listed in the Criminal Code and/or its Regulations.

Can you be charged and convicted for DUI after taking over the counter (OTC) medications?

You absolutely can be arrested, charged, and convicted of impaired driving if you drive high on OTC medications. Many OTC drugs can make a person high, particularly those found in cough syrups (DXM) and other cold and pain medications. Theoretically, even enough caffeine could make a person too impaired to drive as per the Criminal Code’s DUI laws. Don’t think that just because a drug itself is legal to possess or obtain without a prescription that you can legally drive while on it.

Whether you are involved in an accident or pulled over by the police, if signs of impairment are present you will normally be subject to a number of field sobriety tests both at the roadside and at the station with a “drug recognition expert” (DRE). These tests are often recorded on video and presented by the Crown Attorney as evidence in court. If a person exhibits signs of impairment on these tests they can be convicted regardless of what drug is actually in their system.

Since even the lowest possible sentence for cannabis impaired driving in Canada is a criminal conviction record an accused owes it to themselves to do everything they can to get the charges dropped or win an acquittal at trial.

Defending drug DUI charges in court: the burden of proving impaired driving via prescription or OTC drugs in court remains with the Crown in all cases.

While any drug including prescription and OTC medications may cause impairment that legally constitutes impaired driving, it is still the burden of the Crown to prove such impairment in court. In prescription or OTC drug DUI cases, it is sometimes far more difficult for the Crown to prove their case beyond a reasonable doubt than people think it is. Proving that the accused was actually impaired by drugs is often a highly subjective process of evaluating behaviour and opinions can differ as to whether someone is impaired or not.

Just because the police assume you are impaired by drugs does not make it true. That decision is up to the judge. In many cases the police will first suspect alcohol intoxication and then turn their suspicions to drugs after the driver blows a zero on the ASD. This puts the credibility and reliability of the officer’s subjective opinion of impairment in question as their first impression turned out to be wrong.

Since it is not nearly as easy to scientifically prove drug impairment as most people think, the police will try to get the accused to talk and admit to what they took and/or that it impacted them mentally.

The accused may wrongly assume that the police can easily test them and determine exactly what they took so they may as well just to be honest and tell them everything, but in reality their own statements/admissions are often the Crown’s strongest evidence to use against them in court to prove them guilty (they should have just remained silent).

It is a lot easier to prove impairment by drugs after the accused foolishly says to the police something to the effect of:

1. I was prescribed the pills by my doctor / have a prescription
2. I have X condition that requires me to take X medication
3. I've been taking X for years without any problems
4. I didn’t know it would make me high
5. My medication just makes me drowsy, sleepy, tired, etc.
6. The pharmacist didn’t tell me not to drive
7. All I took was over the counter medication
8. I took X medication, but only the recommended dosage

Admitting that drugs were in their system makes it much easier for the Crown to prove their case. Blood testing is not always available, reliable, or sometimes comes back negative for what the person took. By admitting anything this also gives the police reasonable grounds to obtain blood samples and tells the lab exactly what to look for. Even if the lab test comes back negative, they could still be convicted based on their admissions of guilt as many drugs may not be at detectable levels at the time the blood or urine samples were taken for the test (as opposed to when they were driving).

What if my doctor didn’t tell me not to drive if I took the medication?

It doesn’t matter that someone else, be it the physician, nurse, pharmacist or other third party may not have properly explained the medication’s side effects prior to you taking it or that they didn’t specifically tell you not to drive. It is the responsibility of the driver to ensure they are sober before driving. The actions or inactions of third parties may be considered mitigating factors on sentencing if believed by the judge, but they don’t alone make the driver “not guilty” in most cases.

Since all forms of impaired driving offences in Canada are mandatory minimum (fine or jail depending on prior conviction record), no discharge is available for sentencing. This means that even in the best case scenario if you are found guilty you will receive a criminal record that will show up on all forms of background checks for jobs, immigration, travel, etc. The only way to avoid this is to have the Crown Attorney agree to drop (withdraw or stay) the charges or be found not guilty at trial.

Impaired driving cases are among the most litigated forms of criminal charges in Canada. In prescription and OTC drug impaired cases, it can be a lot more difficult for the Crown to prove guilt in court than people assume. The science is not nearly as definitive or conclusive of guilt in drug impaired cases as it is in alcohol-only impaired cases.

Anyone charged with a drug and/or alcohol impaired driving offence should consult with a criminal lawyer immediately to explore potentially successful defence strategies.


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