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Prescription Drugs and OWI

Attorney Aaron D. Hamrock of McCarthy & Hamrock, P.C. in West Des Moines, recently argued a case before the Iowa Supreme Court that established for the first time that the prescription drug defense is available in license revocation proceedings. The decision lead to a reversal of his clients revocation in Bearinger v. Iowa Dep't of Transp., 13-0869, 2014 WL 983125 (Iowa Mar. 14, 2014) after an arrest for Iowa Code section 321J.2 makes it a crime to operate a motor vehicle while under the influence of alcohol or drugs.

In that case, the Iowa Supreme Court decided whether the prescription-drug defense to the criminal charge of operating a motor vehicle while under the influence. The applicable statute, Iowa Code § 321J.2(11) (2011), applies in administrative license revocation proceedings under Iowa Code sections 321J.12 through .13.

OWI and Prescription Drug Defense Attorney in Des Moines

If you are facing OWI charges for allegedly operating a vehicle while under the influence of prescription drugs, contact McCarthy & Hamrock, P.C. to schedule a consultation to dicuss your legal options. We defend individuals in Iowa, Des Moines, and Polk County. We also represent clients in the surrounding counties of Polk County, Dallas County, Warren County, Madison County and Guthrie County. Call an experienced attorney at McCarthy & Hamrock, P.C. to discuss your case.


Information Center for Prescription Drug OWI in Iowa


The Prescription Drug Defense in OWI Cases

The prescription-drug defense is available only to those who have taken their medications in compliance with a doctor's instructions, without any alcohol. See Iowa Code § 321J.2(11)(a ). The defense is not available if the person abused his or her prescription medications or used the medication against their doctor's orders.

The defense is considered an affirmative defense because the fact finder must determine whether the defense has been established at trial. The fact finder is the jury in a jury trial or the judge in a bench trial. Once a defendant has presented evidence sufficient to show the prescription drug defense applies, the State has the burden of disproving each element of the defense beyond a reasonable doubt.

The prescription drug defense to criminal charges is set out in Subsection 11 of section 321J.2:

a. This section does not apply to a person operating a motor vehicle while under the influence of a drug if the substance was prescribed for the person and was taken under the prescription and in accordance with the directions of a medical practitioner ... or if the substance was dispensed by a pharmacist without a prescription pursuant to the rules of the board of pharmacy, if there is no evidence of the consumption of alcohol and the medical practitioner or pharmacist had not directed the person to refrain from operating a motor vehicle.

b. When charged with a violation of subsection 1, paragraph “c”, a person may assert, as an affirmative defense, that the controlled substance present in the person's blood or urine was prescribed or dispensed for the person and was taken in accordance with the directions of a practitioner and the labeling directions of the pharmacy.... Iowa Code § 321J.2(11).


History of Iowa’s OWI Prescription Drug Defense

Section 321J.2 was amended in 1998 to create a per se ban on driving with any amount of a controlled substance in the body regardless of whether a person is “under the influence” of that controlled substance. State v. Comried, 693 N.W.2d 773, 775–78 (Iowa 2005). When the new per se drug version of the OWI was enacted in 1998, the prescription-drug defense was already included in the statutory OWI scheme at chapter 321J.2. The prescription drug defense was codified at Iowa Code § 321J.2(6) in 1987. See 1986 Iowa Acts ch. 1220, § 2(6).


Section 321J.2(1)(c) for OWI Drugs

Iowa Code Section 321J.2 (1)(c) criminalizes driving with any amount of a controlled substance in one's system. The term “any amount” means any amount greater than zero. See Comried, 693 N.W.2d at 778. The “any amount” provision avoids proof problems for the prosecutor in determining the level of a controlled substance in the driver's blood or urine and whether the drug impaired the ability to drive. Id. at 776.


Many Prescriptions Drugs are Controlled Substances

Many prescription drugs are controlled substances. The term controlled substance is defined in Iowa Code § 124.101(5), while the term “prescription drug” is defined in Iowa Code § 155A.3(37). Also see Houck v. Iowa Bd. of Pharmacy Exam'rs, 752 N.W.2d 14, 19 (Iowa 2008) for a description of the overlapping categories of drugs that are both controlled substances and require a prescription. Even prescription medications that are not likely to be abused and that cause no impairment are included on this list such as Lipitor, used to control cholesterol, as well as the antibiotic Amoxicillin, or Prilosec, an antacid.

The prescription-drug defense is necessary, otherwise it would be illegal to drive after taking one of the prescription drugs defined as a controlled substance if any amount of that drug is detectable in the driver's blood or urine.

When a prescription drug defense is established then Iowa Code section 321J.2(1)(c ) is not violated.


Jury Instructions for Prescription Drug Defense

The Prescription Drug Affirmative Defense for OWI provides that if:

The defendant claims that the [drug] that was present in [blood] [urine] was legally [prescribed] [dispensed] and was legally taken. The defendant has the burden to prove by a preponderance of the evidence that:

1. the [drug] was [prescribed] [dispensed] for the defendant; and

2. was taken in accordance with the directions of a physician, dentist, podiatric physician, person licensed or registered to distribute or dispense a prescription drug or device in the course of professional practice in his or her state or person licensed by another state in a health field who is legally authorized to prescribe drugs.


Broader Issues in the OWID Administrative Revocation Hearing

Section 321J.2(1)(c ) imposes criminal liability for any amount of a controlled substance. On the other hand, the revocation provision is broader becasue Iowa Code section 321J.12(1) provides for revocation if “the test results indicated the presence of a controlled substance or other drug. ” (Emphasis added.) Thus, revocation may be triggered by a trace amount of a drug that is not a “controlled substance.”

“Drug” is broadly defined, and includes prescription drugs. See Iowa Code § 155A.3(13) (drug), (37) (prescription drug). See Bearinger v. Iowa Dep't of Transp., 13-0869, 2014 WL 983125 (Iowa Mar. 14, 2014). 



Finding a OWI Attorney for Prescription Drug Cases in Polk County

If you were accused of OWI involving a prescription drug and you have a prescription for that medication, then contact us about the importance of asserting the prescription drug defense during both the administrative revocation hearing to protect your driver's license and in the criminal case. Call an experienced attorney at McCarthy & Hamrock, P.C. to discuss your case.

We assert the prescirption drug defense in OWI cases throughout Iowa, Des Moines, and Polk County. We also represent clients in the surrounding counties of Polk County, Dallas County, Warren County, Madison County and Guthrie County, Iowa.

Tell Us About Your Case

How would you like to be contacted?

This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

* All fields are required.

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