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Memorandum

TO: Dan AbrahamsonFROM: Alex Coolman

RE: Methadone user charged with driving under the influence of drugs.

DATE: July 1, 2005

QUESTION PRESENTED

Does California law support charging a motorist with driving under the influence

of drugs when that motorist is involved in a traffic accident after ingesting methadoneprescribed as part of a long-term methadone maintenance program?

BRIEF ANSWERNo. In order to drive under the influence of any drug in violation of

California Vehicle Code 23152, an individual must be unable to operate that vehicle in

a manner like that of an ordinarily prudent and cautious person in full possession of his

faculties. An individual in long-term methadone maintenance taking the prescribed doseof methadone should not, under ordinary circumstances, have any difficulty in operating

a vehicle in an appropriate manner. Moreover, the codes prohibition on driving whileaddicted to any drug contains an explicit exception for individuals in methadone

treatment, a carve-out intended to allow participants in such programs to drive.

DISCUSSION

California Vehicle Code 23152(a) makes it illegal for a person under the

influence of any . . . drug to drive a vehicle.1 In People v. Canty, the California Supreme

Court noted that being under the influence of drugs for purposes of the vehicle coderequires that the drugs

must have so far affected the nervous system, the brain, or muscles [of theindividual] as to impair to an appreciable degree the ability to operate a

vehicle in a manner like that of an ordinarily prudent and cautious person

in full possession of his faculties.2

This definition, the court noted, is different from the idea of being under the influence

of drugs in violation of the California Health and Safety code. Someone who is in any

detectable manner influenced by a drug may violate the health code,3 but the vehiclecode requires that the operation of a vehicle be impaired to an appreciable degree by the

drivers ingestion of the drug.4

An individual who has been in a methadone maintenance program for some time

and who has ingested only the prescribed dose of methadone prior to driving should beable to operate a vehicle in a manner like that of an ordinarily prudent and cautious

1 Cal. Veh. Code 23152(a) (2005).2 People v. Canty, 32 Cal. 4th 1266, 1278 (2004) (emphasis in original).3 Id.4 Id. at 1279 (noting that the driving-while-under-the-influence misdemeanor described in Vehicle Code

section 23152 primarily is concerned not with the offender's use of the proscribed substance, but with his or

her use of a motor vehicle).

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person in full possession of his or her faculties.5 Participants in methadone maintenance

do not get high from taking the drug in the way that recreational drug users do. 6

Rather, the consistent use of methadone serves to eliminate withdrawal, narcotic

craving, and the destructive need for illegal heroin7 without impairing the normalfunctioning of patients or changing psychomotor performance in areas such as reaction

time or attention span.8

Studies have concluded that for individuals involved in long-termmethadone maintenance there does not appear to be any socially relevant barrier to theirability to perform a variety of tasks such as those found in industrial settings or in driving

motor vehicles.9 In studies of driving records of methadone maintenance patients in

Texas and New York, no significant differences were found between the patients and thedriving population at large.10

The fact that a driver has a traffic accident while there is methadone in his or her

system should not establish that the driver is per se under the influence of that drug inviolation of 23151(a). In People v. De La Torre, a drivers rapid lane change was held

to be evidence . . . sufficient to support a finding that the use of narcotics had impaired

to an appreciable degree defendant's ability to drive safely,11 but the defendant in that

case, who threw a syringe out the window of his car, also displayed fresh injection marks,pinpointed pupils and a reddened septum, and his head nodded and he became inattentive

during his interview with police.12 In People v. Gurrola, driving in an erratic manner

was grounds for finding a violation of 23151(a), but the defendant was also extremelynervous, displayed frozen pupils, had fresh injection marks, had 17 balloons of heroin

in his car, and ran from the scene while his car was being searched.13

Unlike the defendants in De La Torre and Gurrola, an individual on long-termmethadone maintenance should not experience extreme nervousness or sedation as a

result of ingesting methadone, and their driving and behavior should not be impaired

to an appreciable degree by the intake of methadone in any way that would affect theirability to operate a car in the manner of an ordinary and prudent person.14 Like any other

motorist, an individual on methadone maintenance may be involved in a traffic accident,

but there is no California caselaw to support the idea that such an accident must per se

5 Methadone Treatment Works: A Compendium for Methadone Maintenance Treatment, New York StateOffice of Alcoholism and Substance Abuse Services 41 (Dec. 1994), available at http://www.atforum.com/

SiteRoot/pages/addiction_resources/CDRWG%20Mono%202.PDF.6 In the proper dose for an already tolerant user, methadone did not produce intoxication (a high). This

permitted relatively normal functioning, despite the fact that the user was taking large daily doses of anarcotic that would affect a nontolerant individual profoundly. Ernest Drucker, From Morphine to

Methadone: Maintenance Drugs in the Treatment of Opiate Addiction, in Harm Reduction: National

and International Perspectives (James Inciardi & Lana Harrison eds., 2000) 36, available at http://

www.drugtext.org/library/articles/drucker01.htm.7 Id.8 Joyce Lowinson et al., Methadone Maintenance, in Substance Abuse: A Comprehensive Textbook, 3d

Ed. (Joyce Lowinson et al. eds., 1997) 409.9 Methadone Treatment Works, supra.10 Lowinson et al., supra.11 People v. De La Torre, 263 Cal. App. 2d 409, 413 (1968).12 Id. at 411.13 People v. Gurrola, 218 Cal. App. 2d 349, 351 (1963).14 Philip Appel and Herman Joseph, Driving Performance of Methadone Maintenance Patients, New

York State Office of Alcoholism and Substance Abuse Services (Feb. 1997), (noting that a person

regularly using an opiate may also be a person who is alert, clear-headed, and engages in a full range of

activities . . . . [This] is clearly the case with methadone).

http://www.atforum.com/SiteRoot/pages/addiction_resources/CDRWG%20Mono%202.PDFhttp://www.atforum.com/SiteRoot/pages/addiction_resources/CDRWG%20Mono%202.PDFhttp://www.drugtext.org/library/articles/drucker01.htmhttp://www.drugtext.org/library/articles/drucker01.htmhttp://www.drugtext.org/library/articles/drucker01.htmhttp://www.drugtext.org/library/articles/drucker01.htmhttp://www.atforum.com/SiteRoot/pages/addiction_resources/CDRWG%20Mono%202.PDFhttp://www.atforum.com/SiteRoot/pages/addiction_resources/CDRWG%20Mono%202.PDF

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be a result of being under the influence solely because the driver is using prescribed

methadone.15

This interpretation is bolstered by California Vehicle Code 23152(c),which

makes it illegal for a person addicted to the use of any drug to drive a vehicle butexplicitly exempts individuals participating in a narcotic treatment program.16 The first

drug listed in the California Health and Safety Code section on authorized controlledsubstances for use in replacement therapy is methadone.17 It is therefore not a per seviolation of 23152(c) to drive while addicted to methadone. The legislative history of

California Vehicle Code 23105, whose substance was later incorporated into 23152,18

also makes clear that methadone patients were exempted from this section of the code inorder to allow them to drive while undergoing methadone therapy. The emergency statute

that amended 23105 noted that

Methadone maintenance treatment programs are putting many heroin

addicts on the road to a normal life. A driver's license is often a basic

part of rehabilitation because it enables participants in these programs

to drive and hold regular jobs. It is necessary that this act go into effectimmediately in order to avoid the disastrous effects upon rehabilitation

due to an inability to drive to work.19

CONCLUSION

The driving of an individual participating in long-term methadone maintenance isnot, under ordinary circumstances, impaired to an appreciable degree by their ingestion

of methadone. For this reason, an individual who drives after taking prescribed

methadone is not per se driving under the influence of methadone, and there is nocaselaw suggesting that being involved in a traffic accident changes that legal status. The

California Vehicle Codes explicit willingness to allow methadone therapy participants to

drive further supports the conclusion that such activity is not a per se violation of 23152.

15 In an unpublished opinion, the Fourth District Court of Appeal upheld the conviction under 23153(a)

(causing bodily injury to another while driving under the influence of alcohol and/or drugs) of a motorist

who rear-ended another vehicle at 3:45 p.m. on the afternoon after an 11 a.m. methadone treatment.However, the motorist also reported drinking a quart of beer at noon and his blood tested positive for

codeine and morphine, which do not metabolize into or from methadone. The motorist was was slow

and deliberate, had droopy eyes, and smelled of alcohol, and performed poorly on all field sobriety tests.

People v. Villa, 2004 Cal. App. Unpub. LEXIS 11843 (2004).16 Cal. Veh. Code 23152(c) (2005).17Cal Health & Safety Code 11875(a) (2005).18 Cal. Veh. Code 23105 was repealed in 1981, its substance becoming incorporated into 23152.19 Cal. Stats. 1971, ch. 363, 5, 730, cited in People v. Gonzales, 2003 Cal. App. Unpub. LEXIS 6596, 28

(2003) (emphasis added).