Exercising Your Right to Remain Silent: Roadside Questions Regarding Prescription Medications

Hello everyone. A couple of months ago I posted an article on this blog about why answering police questions at the roadside about prescription medications can be perilous to the driver. (See: Why Answering Police Questions About Prescription Meds Can Get You Arrested for DWI, October 15, 2008). Since that time I have received a number of emails, calls, postings and other inquiries about this issue.

From the outset it is important to remember that this issue involves one of our most basic and valuable Constitutional rights: the right to be free from compelled self-incrimination. The Framers of our Constitution cemented this right into the foundation of our Bill of Rights in the Fifth Amendment, which reads as follows:

"No person shall be held in answer for a capital, or otherwise infamous crime, unless on a presentment to a Grand Jury; except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation."

So how does that all fit in with answering questions from a police officer at the roadside? Focus on the clause in the Fifth Amendment that I copied in bold font above:

nor shall be compelled in any criminal case to be a witness against himself

This is the taproot of our right to remain silent. When the police ask you have been drinking they think you might be intoxicated by alcohol. Everyone knows it is illegal to drive drunk. So many drivers when faced with that question offer up information to the officer about prescription drug use, thinking that since the drugs were lawfully prescribed, it is not against the law to take them in the prescribed manner and drive. This is a dangerous path.

In New Hampshire you can be charged with driving under the influence of a controlled drug, or a combination of alcohol and a controlled drug, if the controlled drug or combination of alcohol and controlled drug impairs your ability to operate a motor vehicle. So if the driver tells the officer that he has taken his prescription for painkillers, anti-anxiety medication or any other lawfully prescribed drug, he is likely to find himself charged with driving under the influence of drugs. Telling the officer that you took a painkiller for your back pain an hour ago is no more favorable to you than telling him you drank four beers an hour ago. Both these statements will be used to prosecute you for DWI.

It is imperative to remember that, like everything else the police do after they have ordered you out of your car, questions about prescription medications are designed to incriminate you. If you tell the police that you are taking prescription meds you are likely to be confronted with a police request for a blood test and then a charge of driving while intoxicated (DWI), driving under the influence (DUI) or operating under the influence (OUI) based on drug impairment or a combination of drug and alcohol impairment. Many drivers think they will help themselves avoid arrest by saying they were taking prescription medications to account for problems they encounter with "field sobriety tests". Quite to the contrary, any statements about prescription meds will only be used to prosecute the unwitting driver who is honest with police during a DWI investigation.

It is important to remember that once the police get you OUT of the vehicle for a DWI investigation, the chances are you are not getting back IN to your own vehicle. This is particularly true in roadblocks, where the police are very "numbers driven" in order to justify the funding they receive for the roadblocks and to attempt to justify the trampling of the Constitution that is the hallmark of all roadblocks. "Close ones" or "mild impairment" cases ALL get arrested in a DWI roadblock because the police need to justify blocking the road and infringing on the rights of hundreds of innocent drivers.

Remember to use caution when deciding whether to tell the police ANYTHING, but particular caution should be used when deciding whether to incriminate yourself by answering questions about prescription medications.

Have a safe night,

Mark Stevens
5 Manor Parkway
Salem, NH 03079




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  1. Mark,

    This is excellent advice. As an aside, drivers in California are also arrested for driving under the influence of OTC herbal supplements (e.g. valerian root commonly taken for anxiety), or any OTC med that could have side effects consistent with poor performance on field sobriety tests.

    I hope everyone realizes how right you are that once an individual is ordered out of their car, the next car they will almost always enter will be a squad car, even if the field sobriety tests were perfectly completed. Statistically, police net very few stops at roadblocks, so again, you are right on the money--they need whomever they can get. They're not MADD, they're the police who answer to a Police Chief who answers to a Mayor.

    Is it true, Mark, that by telling officers what prescription meds have been taken, drivers are guaranteeing that they will be subjected to a blood draw since the police now know for what drug derivatives they need to test (or is urine available in New Hampshire)?

    I wonder if the best thing someone can do when pulled over for a DUI (if he or she has been drinking or taken any drugs (prescription or otherwise) that could affect performance on FSTs) is to simply request that they be given a breath (or, if preferable or available, blood or urine test) instead of saying anything about drinking or meds/drugs?

    Again, an excellent post with advice that will be heeded by the wise.

  2. Dear TLS,
    Thank you for your kind comments and for your information on California DWI law regarding the OTC items. As far as your question about a blood draw request being guaranteed, I would say nothing is guaranteed, but I see the blood draw request every time there is any kind of statement about any kind of prescription drug use.
    Less is best, as far as providing the police any potentially incriminating statements at the roadside.
    Best regards,