More than 131 million adults are on prescription medication in the United States. That is 66%, or two-thirds, of adults walking around while some amount of prescription medication in their bodies. Back pain, arthritis, mental health, digestive issues, are only a fraction of the reasons why some people take medication. A health professional prescribes it to you, and you take it. For some people, they decide to self-medicate and take something not prescribed.

If you ingest a Schedule I or II controlled substance, and do not even know you are doing it, or lack a prescription for it, you subject yourself to a DWI if you get and later get behind the wheel. It is a Controlled Substance DWI in Minnesota, if your blood or urine sample contains any amount of a controlled substance listed as Schedule I or II. It is only an affirmative defense if you were taking the controlled substance in accordance with a prescription. Thus, if you are not supposed to be driving a vehicle while taking the medication, prescription defense is going to be hard for you to prove. Similarly, if are not supposed to be consuming alcohol while taking the prescription and you test positive for alcohol and the controlled substance, it is going to be hard for you to prove the affirmative defense.

Recently, the Minnesota Court of Appeals addressed whether someone needs to have knowledge that they took the controlled substance to be convicted of DWI for having any amount of a Schedule I or II controlled substance. In State v. Schwartz, Jr., the driver had 0.03 mg/L of amphetamine, a schedule II controlled substance, in his system upon being arrested for DWI. He later plead guilty to Controlled Substance DWI – Any Amount of Schedule I or II. During his plea of guilty, he did not state on the record that he knew, or had reason to know, that his body contained any amount of a Schedule I or II Controlled Substance. That was the basis for his appeal to withdraw his guilty plea.

The problem with the driver’s appeal, according to the court, is that DWIs are general-intent crimes. The “requisite mental state being ‘only a general intent to do the act.’” (citations omitted). The statute does not require that a person knows, or has reason to know, that their body contains a Schedule I or II Controlled Substance. If they so happen to have one of those substances in their body, then they can use the affirmative defense, if they were taking the substance in accordance with their prescription.

Controlled Substance DWIs are becoming more prevalent every day. The type of substances in a driver’s system can have a great impact on DWI and Criminal Vehicular Operation cases. Further, the only way to test, currently, whether someone has a controlled substance in their system is to do a blood or urine test. Which presents a whole other host of issues in itself regarding warrants, testing procedures, lab analysis, and chain of custody.

Robert H. Ambrose is a criminal defense attorney and DWI lawyer in Minnesota. Super Lawyers named him a Rising Star for the past five years; and the National Trial Lawyer’s Organization named him a Top 40 Under 40 Trial Lawyer the past seven years. DWI Attorney Woodbury MN; Criminal Defense Attorney Minnesota; and Minnesota Criminal Appeals Attorney.

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