As more and more efforts by our government are being made to try to criminalize legitimate medical palliative care issued by a trained clinician, the more a DUI lawyer has to learn and know about the law and the science behind pharmacology. This is never more true than in the case of Driving Under the Influence of Drugs (DUID) cases.

Not a day goes by at this firm that we don’t encounter good law abiding, tax paying citizen who is on monitored medication programs issued under the supervision, care and control of a clinician that was stopped by the police and arrested for DUID. The police have switched from asking “Have you had anything to drink tonight?” to “Have you had anything to drink or taken any medications in the last 24 hours?” From an early age, we are taught to be honest with the police, to cooperate, and tell the truth to them. Thinking that they are under doctor’s care and are following the prescriptive plan and cannot get in trouble, they admit that they have. If it is anything that is even possibly impairing (or even not impairing or unknown to the officer), they are arrested.

If they are lucky, they call this firm. We do the research on the person to determine the person’s lawful authority to possess, and use the drug detected or admitted to be used.

So many times we uncover a legitimate prescription by a doctor that was filled, but time elapsed since its issuance and the traffic stop.

A well intentioned, but wrongly informed, Deputy District Attorney looks at the medical and prescription records and concludes that because the prescription was issued long ago that the drug possessed, admitted to, and perhaps detected is unlawfully possessed or improperly used.

Under the ordinary course of events, this is simply not so.

First, we have to look at the underlying pathology that caused the prescription to be ordered. Is it chronic or acute? If it is acute is it recurring? Is it something that is unpredictable in its presentation and can strike or effect the person without notice or warning? When we get the medical records, we are looking for abbreviations like “PRN,” “A/N,” “ASNE,” “SANE,” or “pro re nata.” All of these mean “as needed” which means that the prescribing clinician leaves it to the discretion of the user to take the drug as needed. Also there is “ad lib” which indicates that the person may use the drug “as much and as often as desired.” These important abbreviations or directions for use may or may not be in the medical records. They may or may not make it into the pharmacy database where the prescription is presented. They may or may not make it on the script that is written. They may or may not make it on to the bottle. The clinician may or may not recall saying it either. So all of those sources need to be explored to look at the use as designed by the clinician at the time of dispensing.

Second, we have to make the large and essential distinction between the prescription (meaning the piece of paper the doctor writes out to authorize the pharmacist to dispense the drug) sometimes called “the script,” and the actual possession of the drug once dispensed. There is a huge difference: unfilled prescription (the piece of paper) versus filled prescription (the drug). We have to be right on the facts.

As far as the prescriptions and expiration to fill them, in Pennsylvania, it is governed by both the Federal Controlled Substances Act (21 U.S.C.A. § §  801—904), and The Controlled Substance, Drug, Device and Cosmetic Act (35 P. S. § §  780-101—780-144):

1. In Pennsylvania, non-Controlled medications are good for one year from the date written, unless the doctor specifies a sooner date on the prescription. These would be drugs like antibiotics, blood pressure medications, stomach acid medications, most psychiatric medications for depression (e.g., citalopram (Celexa®), escitalopram (Lexapro®), fluoxetine (Prozac®), fluvoxamine (Luvox®) , paroxetine (Paxil®), sertraline (Zoloft®)), psuedoephedrine, and Dextromethorphan.
2. In Pennsylvania, per 49 Pa Code Section 27.18, controlled medications on the DEA Schedule Controlled Substances III, IV and V lists are good for six months from the date written unless the doctor specifies sooner on the script. These class of drugs include medications such as some Benzodiazepines (e.g., Ativan, Halcion, Librium, Valium, Xanax), some Barbiturates (e.g., butalbital (Fiorina®), butabarbital (Butisol®), talbutal (Lotusate®), aprobarbital (Alurate®), methohexital (Brevital®), thiamyl (Surital®), phenobarbital (Luminal®), mephobarbital (Mebaral®) and thiopental (Pentothal®)), Sleep Medications (e.g., Ambien® (zolpidem), Sonata® (zaleplon), Lunesta® (eszopiclone)).
3. Controlled medications on the DEA Schedule Controlled Substances II list are entirely state dependent. Most have to be filled within 3-7 days of being written and cannot be refilled. In Pennsylvania, per 49 Pa Code Section 27.18, for all Schedule II drugs the prescription must be filled within 6 months from the date of the prescription. Prescriptions for Schedule II controlled substances may not be refilled. These drugs include most Opiates (e.g., Morphine, Codeine, Hydrocodone, Methadone, Fentanyl, and Oxycodone) as well as some Stimulants (e.g., Adderall®), and some Barbiturates (e.g., amobarbital (Amyta®), pentobarbital (Nembutal®), secobarbital (Seconal®), and Tuinal (an amobarbital/secobarbital combination product)).

Once filled, there is no authority to say that the person to whom the lawful prescription was issued and lawfully dispensed loses his or her lawful right to own, possess, or use that drug in Pennsylvania. In other words, you have no duty or lawful requirement to surrender any drug that is legally issued to you even after the posted “expiration date” that may be printed on the bottle by the pharmacist. The expiration date on a bottle printed by the pharmacist without consultation with the prescribing clinician does not otherwise alter the lawful possession of the drug as it is under the clinician’s authority that the drug is dispensed and the pharmacist is merely the conduit of action.

The Governor of Pennsylvania just moments ago signed into law Pennsylvania Senate Bill 1180-2013 or Act 191 of 2014 (Achieving Better Care by Monitoring All Prescriptions Program (ABC-MAP) Act.). Within it is a requirement that the government set up a statewide database that “seeks to aid regulatory and law enforcement agencies in the detection and prevention of fraud, drug abuse and the criminal diversion of controlled substances.” This is new territory for Pennsylvania.

In section 9 subsection b of the Act, it allows the Office of the Attorney General of Pennsylvania (either for their own investigative purposes or the purposes of any and all federal state and local law enforcement agencies) to query for records regarding :

1. All Schedule II drugs (without a warrant or judicial approval required);

2. All other Scheduled drugs with a receipt of a court order obtained by the requesting law enforcement agency. (The court order shall be an ex parte motion (without your attorney or you knowing about it and done in secret)). The government only need to prove by a preponderance of the evidence that:

2.1. the motion pertains to a person who is the subject of an active criminal investigation with a reasonable likelihood of securing an arrest or prosecution in the foreseeable future; and

2.2. there is reasonable suspicion that a criminal act has occurred.

There is a limitation, the government can only use it as a means to obtain probable cause to then go obtain a search warrant to lawfully obtain that same evidence from that database to use against you. The fact that they accessed the system and developed probable cause shall be held from you for six months afterwards per section 9 subsection c of the Act.

So yes, the local police who arrested you for DUID can seek an ex parte order where you cannot be represented or object or even know about it ahead of time or until 6 months afterwards that seeks your prescription drug history and drug fulfillment history in Pennsylvania and then use it to prosecute you for DUID.

So welcome Pennsylvania government and law enforcement into the day and age of warrantless fishing expeditions in DUID cases into your medicine cabinet.

Strikes me as follows:

The nine most terrifying words in the English language are “I’m from the government, and I’m here to help.”

Justin McShane

PA DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency.