In a recent DWI case, a St. Louis County prosecutor was pursuing the theory that the defendant was intoxicated by a combination of over the counter medicines. The defendant had admitted to police that he had “chugged some NyQuil,” maybe a third of a bottle, that he had consumed four Tylenol, and two Aleve. The prosecutor was going to attempt to prove her case by endorsing an expert witness who specifically testifies in cases of intoxication by over the counter medicine. The simple thought that taking some cold medicine and over the counter pain pills and then being convicted of a DWI is a very scary proposition.

When the police officer was investigating this case, he was not looking for over the counter medicines, nor was he looking for drugs at all. The officer believed this was a standard, run of the mill, Driving While Intoxicated by alcohol intoxication. He even wrote on the citation that he issued to the defendant, “Driving While Intoxicated – Alcohol.” This case turned when the defendant consented to a blood test, which came back to show that his blood alcohol content was only 0.01%, which is not only well under the legal limit, but it is barely any alcohol at all. Most cases would probably have been dropped at that point, but this particular defendant also had marijuana in his system and a serious history of drunk driving related incidents so the prosecution moved forward.

It is important to point out that marijuana stays in a person’s system long after the actual effects of that marijuana have worn off. This is an issue that Colorado and Washington are both dealing with right now due to the decriminalization of marijuana. The prosecutor knew DWI by marijuana intoxication would be unsuccessful. The defendant’s own admission that he had consumed the combination of over the counter medicines opened the door for a creative prosecutor to implement this new theory of prosecution.

On the cusp of trial in this case, a plea agreement was bartered for a lesser charge, but over the counter medicine is now more of a concern when driving then it had been before this case. It will be interesting to watch to see if this becomes a new trend for aggressive prosecutors, or if this case was a one-time anomaly.

– Please visit our DWI page for more information, but if you have a unique case or if something unusual happened during an arrest, please contact our office at (314) 277-1949 to speak with an attorney about your situation.