One for the Legal Eagles among us, or those who hope to be some day.

[BuckyXTC]

A young friend of mine recently had an unpleasant situation while driving on one of New Jersey's interstate highways. He has suffered from severe chronic migraines for the past three years, and after many medical tests and various drug trials, his neurologist prescribed some strong pain medication that became a household word after the Rush Limbaugh episode with that drug. (This is not a political thread).

 

Anyway, my young gay friend was driving at the speed limit of 65mph as he approached a pickup truck that had its emergency flashers on, probably traveling about 20 miles under the speed limit. My friend signaled and went around the truck, at which time he noted the driver was consuming a beer. When it was safe to do so, he signaled again and returned to the right lane so he could take his upcoming exit. The driver of the truck increased his speed rapidly and began to tailgate and honk his horn. A minute or so later, a State Police cruiser appeared, and pulled both cars over. The driver of the truck jumped out and went over to the police car, pointing in my friend's direction. The police went to my friend's car, ordered him to exit the car, and proceeded to administer a field sobriety test. Before the sobriety test was even finished, a tow truck arrives and begins to make preparations to tow away my friend's vehicle. The officer asks my friend if he needs anything from the car, because they are placing him under arrest for drunk driving. My friend indicates that he needs his shoulder bab in the front seat of his car, and they retrieve it. He is taken to the police barracks and given a Breathalyzer test, which shows he has no alcohol in his body. He is also given a urine test, and some coordination tests. Then the police search his bag and find his legally prescribed medications, along with a pill cutter. Soon they are accusing him of being a junkie, and saying that he has the medication for the purpose of distribution. To make a long story short, they charge him with DUI, possession of a controlled substance with the intent to distribute, and possession of drug paraphernalia (the pill cutter). They also charge him with careless driving. During the interrogation the police had asked him where he was going and he indicated he was going to visit his boyfriend. When they handcuffed him and put him in a holding cell, he could hear them referring to him as "the faggot".

 

My friend hires a lawyer from a respected firm who is reputed to be a specialist in criminal cases. The lawyer is confident that he can probably get the charges reduced to the simple "careless" charge, as the results of the Breathalyzer and the fact that he legally possessed the medication should show the spuriousness of those charges.

 

The police did not provide discovery to his attorney until two days before the hearing. They did not videotape the sobriety tests or anything else, but they claim he failed the roadside tests and neurological tests. Mind you, chronic migraines have symptoms like slurred speech and lack of coordination that could mimic intoxication.

 

On the day of the hearing, the lawyer tells my friend that the prosecutor has offered a plea arrangement for him to plead guilty on the DUI and that all other charges will be dismissed. The court location is in a conservative county, and the judge has a conservative reputation, hence the attorney seemed to be suggesting that he should seriously consider the deal being offered, even though he feels he is guilty of no crime. It also turns out that the beer drinking truck driver was actually an off duty State Trooper who works in the same barracks as the arresting officers.

 

Bottom line is this: if my friend accepts the plea agreement, he will have his driving privileges revoked for 3 months in New Jersey, but since his license is from a neighboring state, the revocation will actually last for 12 months.

 

What would you do if you found yourself in such a circumstance? His attorney doesn't seem to be holding out much hope that the judge will dismiss the DUI.

[+ Lucky]

RE: One for the Legal Eagles among us

 

With all due respect, the scenario you post just does not ring true. Your friend is not telling you the whole story.

[tazmanian5230]

If the Meds were Prescribed by a MD there is something not being told here or his lawyer is playing lets make a deal for the purpose of getting his case over with without a trial.

Most lawyers and prosecutors dont want trials. Its easier to play lets make a deal.

 

If he knows hes not guilty and his attorney cant get him a better deal he needs a new lawyer.

 

If the Meds were prescribed without limitations such as "NO DRIVING" his case would be dismissed under NJ 39:4-50.

[BuckyXTC]

RE: One for the Legal Eagles among us

 

>With all due respect, the scenario you post just does not

>ring true. Your friend is not telling you the whole story.

 

Lucky:

 

I'd be interested to know what you think "doesn't ring true". I'm convinced my friend has told me the story, just as it happened. And due to the fact that I've worked with many juveniles over the years in terms of their court involvement, I've seen more than my share of dishonest cops, some who ended up being "unmasked" in the courtroom. What seems unbelievable or missing from the story?

[woodlawn]

>If the Meds were Prescribed by a MD there is something not

>being told here or his lawyer is playing lets make a deal for

>the purpose of getting his case over with without a trial.

>Most lawyers and prosecutors dont want trials. Its easier to

>play lets make a deal.

 

Correction: criminal defense lawyers LOVE trials. Unlike prosecutors, the more time they spend on a case, the more money they make.

 

>If the Meds were prescribed without limitations such as "NO

>DRIVING" his case would be dismissed under NJ 39:4-50.

 

These days reputable pharmacies are extremely cautious about warning labels and routinely put "no driving" warnings on medication they dispense even when the chances it will seriously impair a driver are small. That may provide a clue about why the prosecutor is being so hard-nosed here.

 

Tell your friend that plea bargains are not always "one time only" offers, despite what he may see on "Law and Order." It's quite possible that if he instructs his lawyer to tell the prosecutor the offer is not good enough and he wants to go to trial, the prosecutor will come back with a better offer either right away or soon before the trial is to begin.

[+ Lucky]

"my young gay friend was driving at the speed limit of

>65mph as he approached a pickup truck that had its emergency

>flashers on, probably traveling about 20 miles under the speed

>limit. My friend signaled and went around the truck, at which

>time he noted the driver was consuming a beer"

 

Why would a state trooper driving a pickup be driving like this while drinking a beer? Sounds like a very unlikely scenario. And then just because your riend passes him he is accelerating to get him and calls the state troopers at the same time? And they arrive in a minute? It seems much more likely that there was some kind of interaction between your friend and the driver that caused himm to act.

 

It is also unlikely that the car is set up for tow even before a field sobriety test is run. And the stopping officer must have had some probable cause or else the test would have been thrown out. Your friend could have passed the pickup in a reckless fashion and acted suspiciously when stopped. I'll bet that's what the cops say.

 

Since the "faggot" slur doesn't occur until after he is in custody, I doubt he was stopped because he was gay.

 

If the discovery was provided late his attorney could have received a delay to study it. Why didn't he? You state that migraines mimic symptoms of intoxication. Did your friend display them? You don't use a pill cutter to cut up Oxycontin (Limbaugh's drug). Only people who abuse it would do that so they could avoid the time release and snort it for a quick high.

 

The pickup truck cop is going to deny the beer drinking, claim your frined drove recklessly past him, called for help, made a legitimate stop, observed signs of intoxication, found drugs, and made the arrest. The other cop is going to support him. Sounds like the attorney is getting the best deal he can. I don't believe your friend, so don't put me on the jury!

 

But since he is your friend, I wish him good luck.

[BuckyXTC]

>

>"my young gay friend was driving at the speed limit of

>>65mph as he approached a pickup truck that had its emergency

>>flashers on, probably traveling about 20 miles under the

>speed

>>limit. My friend signaled and went around the truck, at

>which

>>time he noted the driver was consuming a beer"

>

>Why would a state trooper driving a pickup be driving like

>this while drinking a beer? Sounds like a very unlikely

>scenario. And then just because your riend passes him he is

>accelerating to get him and calls the state troopers at the

>same time? And they arrive in a minute? It seems much more

>likely that there was some kind of interaction between your

>friend and the driver that caused himm to act.

 

The State Police barracks is less than a mile from where the stop occurred.

>

>It is also unlikely that the car is set up for tow even before

>a field sobriety test is run. And the stopping officer must

>have had some probable cause or else the test would have been

>thrown out. Your friend could have passed the pickup in a

>reckless fashion and acted suspiciously when stopped. I'll bet

>that's what the cops say.

 

The tow truck arrived DURING the Field Sobriety Test, not before.

>

>Since the "faggot" slur doesn't occur until after he is in

>custody, I doubt he was stopped because he was gay.

 

I never implied that he was stopped because of sexual orientation. I'm just stating the kind of treatment he received while in custody. I think my friend's judgment was poor in telling the cops that he was going to "visit his boyfriend". He should have just said, "a friend". That's the world we live in, and we know many cops lean toward the redneck side of things, and not particularly "gay friendly".

 

>If the discovery was provided late his attorney could have

>received a delay to study it. Why didn't he? You state that

>migraines mimic symptoms of intoxication. Did your friend

>display them? You don't use a pill cutter to cut up Oxycontin

>(Limbaugh's drug). Only people who abuse it would do that so

>they could avoid the time release and snort it for a quick

>high.

 

My friend doens't use the pill cutter to cut Oxycontin. He uses it to cut Percocet, which is prescribed for "breakthrough pain". You are correct in stating that Oxycontin should not be cut or crushed. That is precisely how drug abusers get an instant full release of the oxycodone it contains, rather than in the time released dosage it is designed to deliver.

 

>The pickup truck cop is going to deny the beer drinking, claim

>your frined drove recklessly past him, called for help, made a

>legitimate stop, observed signs of intoxication, found drugs,

>and made the arrest. The other cop is going to support him.

>Sounds like the attorney is getting the best deal he can. I

>don't believe your friend, so don't put me on the jury!

 

I agree that this is the story the cops will use, and this may be the best deal my friend can get. As trials in municipal court in New Jersey are bench trials and there is no jury, the verdict all rests with the judge.

>

>But since he is your friend, I wish him good luck.

 

Thanks for the good wishes. I'm not ready to say that my friend is a perfect driver, but I know he was not driving intoxicated, and that he would never sell the medication, hence I maintain he is innocent of the DUI and drug charges. As for the careless driving charge, a cop can make that charge stick to anyone.

[BuckyXTC]

>It's quite possible that if he instructs his lawyer to tell

>the prosecutor the offer is not good enough and he wants to go

>to trial, the prosecutor will come back with a better offer

>either right away or soon before the trial is to begin.

 

 

I"ll have my friend suggest this to the attorney and see what he thinks. Thanks for the suggestion.

[Guest Merlin]

The major problem is that the migrain and the drugs seem to have cause symptoms similar to intoxication, making it unsafe for him to be driving. DUI in most states is not limited to alcohol, but can include even prescription drugs if they make it unsafe to drive.

[tazmanian5230]

Interesting Terms....

"Probable Cause"

"In Custody"

"Legitimate Stop"

Hmmmm,,,,Your an interesting man Mr Lucky.....

[Luv2play]

RE: One for the Legal Eagles among us

 

I have the same feeling as Lucky, something here has been left out. The way your friend has described it to you, his driving was the model of decorum. Why then did he attract the attention of the truck that he passed prior to exiting the interstate? I cannot fathom if everything happened as he desribed it to you, why the cops would even think anything was amiss. I have seen enough aggressive drivers who pass you only to exit directly in front of you. They don't seem to want to just slow down and take the exit without making 2 lane changes.

 

Also why was your friend traveling with his drug kit? Was he on an overnight trip? "Prescription medications" sounds innocuous but we know they are abused by a significant proportion of the population and many of these people drive their cars while under the influence of those drugs without thinking twice. I'm not saying your friend is in this category but he's going to have to convince the judge of that, unfortunately.

[+ Lucky]

RE: One for the Legal Devils among us,

 

Agreed!

[joel304]

1. Request a continuance.

 

2. Retain new counsel (if these are the facts).

 

3. If these are the facts, there will be dismissals on all charges, and a reduction on the reckless count. The prosecutor will not pursue a trial.

 

4. Woodlawn is correct. I love trials - no matter what. Mo' money. I charge $300 per hour in court, and $175 for office hours and preparation time.

 

5. Cops lie, cheat, steal and coerce. DUI's on the police force are rarely booked, yet often practiced.

 

6. You're probably not being presented with the whole story. I would never recommend a plea on any of these charges, except perhaps the reckless driving, although I would be hesitant without a reduction.

[Guest]

Just a comment from the medical perspective. Opiods should almost never be prescribed for headaches (with the rare exception of acute head trauma and meningitis), especially for migraines. There is no such thing as "breakthrough pain" when it comes to migraines. The term "breakthrough pain" refers to an exacerbation of a chronic pain condition (such as cancer which has spread to the bone). Migraine pain is not chronic, by definition. It is episodic.

If your friend has headaches every day, he does not have migraines. Period. He may have had migraines way back when, but if he has headaches every day (let alone constant headaches), what he has are analgesic-withdrawal headaches. The more opiods/narcotics he takes, the more frequent and severe his headaches will become. Escalating the narcotic doses will only worsen the problem.

Analgesic-withdrawal headaches happen when incompetent doctors (or nurse practitioners or physician assistants) prescribe opiods (or some other drugs such as barbiturates) for headaches (especially migraines, but sometimes for tension headaches). Patients often hop from Emergency Room to Emergency Room, complaining that "only Vicodin helps," then "only Percodan helps," then "only Demerol helps." The sister of one of my friends actually died of an OD this way. Although it seems obvious, patients rarely have insight that the opiods are causing, rather than helping the problem.

Pill splitters are used to cut expensive medicines in half. Percocet/Oxycodone combinations come in a wide variety of strengths, and varied inexpensive generic formulations. I cannot understand how a pill splitter would come into play for an oxycodone pill.

[Flower]

When I was prosecuting criminal cases, pill cutters were never considered narcotic paraphernalia such as to make a mere possession, possession for sale, a highly aggravated offense.

 

As you said, I don't understand how the pill cutter comes into play either, unless it was used for crushing rather than cutting as Lucky suggested. But then, why have a pill cutter at all? Should he be having the correct dosages per his Rx?

 

From what you write, I gather that Percocet/Oxycodone comes in a variety of dosages, so if he had a legitimate prescription, then he wouldn't need to be cutting it--is that correct?

 

As I recall, you usually have to wait 4 hours between doses, so why does he even have all the pills and the cutter?

 

I think there might be something to the possession for sale charge--the facts seem to suggest this was a short trip, rather than a long road trip where you'd expect him to have all of his meds along with overnight luggage, etc. Therefore, I wonder why so many tabs unless he's selling--if he's selling, then a cutter might come in handy especially if he is buying large dosage tabs, but then would a legitimate doctor be prescribing larger than the expected dosage anticipating they will be cut in half?

 

I agree with Lucky in that the facts don't ring true, although the more I read, the more I'm inclined to believe that he was in fact possessing for sale.

 

As for going to trial, being under the influence or "partial" influence of a prescription drug is just as much a DUI as under the influence of alcohol. If there are 2 state troopers testifying as to his FSTs, as well as the other visual neurological eye-movement observations they are now trained to do, lots of luck.

 

I agree that his attorney seems to be letting the DA push him around a bit, but as a practical matter, this kid has an uphill battle at trial, and I'd definitely suggest a plea bargain, hopefully better than he has at this point, but I also wouldn't let this one slip away!!

 

Much depends on the impressions the State Troopers make, as oppossed to whether they're telling the truth or not, but I find it difficult to see a motive for this unless the kids driving was erratic in the first place, indicating being under the influence or "partial influence."

[Guest Tristan]

Even if the pill you have is the correct dosage of a medication, it's still possible to have a legitimate reason for using a pill cutter. Cutting the pill in half makes it easier for some people who have difficulty swallowing larger tablets. It's perfectly OK to cut most tablets as long as there is no warning about not cutting or crushing the medication, such as with enteric coated aspirin.

[BuckyXTC]

>I think there might be something to the possession for sale

>charge--the facts seem to suggest this was a short trip,

>rather than a long road trip where you'd expect him to have

>all of his meds along with overnight luggage, etc. Therefore,

>I wonder why so many tabs unless he's selling--if he's

>selling, then a cutter might come in handy especially if he is

>buying large dosage tabs, but then would a legitimate doctor

>be prescribing larger than the expected dosage anticipating

>they will be cut in half?

 

The possession for sale charge is bogus......I know this for a fact. He had just refilled the prescriptions the day before and was taking care of some last minute stops before heading south for the funeral of his grandmother. That is why he had the medication with him. Under normal circumstances, he would not have had the full prescriptions with him, as he only takes the daily dose required with him for work. As for the pill cutter, the Percocets are scored tablets, and sometimes he takes less than a full tablet, not wanting to take any more than is necessary.

 

By the way, possession of a pill separating devices such as a pill cutter or those little plastic bags you can purchase from any pharmacy for carrying a single day's medication would only be "drug paraphernalia" if you illegally possessed the actual medications in your possession. An example: If you had a large bag of cocaine (illegal to possess) and a slew of small baggies, the baggies would clearly be "drug paraphernalia", and indicative of the intent to distribute. On the other hand, if you have a bottle of Percocet legally prescribed to you and you have the little bags in your car, the bags are not "paraphernalia". The reason the prosecutor was so quick to offer a plea that dispenses with the "possession with intent to distribute charge", and the "drug paraphernalia" charge, is because they don't have a leg to stand on, at least that is the opinion of my friend's attorney, and other attorneys he has spoken with.

>

>I agree with Lucky in that the facts don't ring true, although

>the more I read, the more I'm inclined to believe that he was

>in fact possessing for sale.

 

Absolutely not the case. Having personally witnessed the kind of pain and incapacitation he suffers, I think he would part with his car before selling or giving away any of his medication.

>

>As for going to trial, being under the influence or "partial"

>influence of a prescription drug is just as much a DUI as

>under the influence of alcohol. If there are 2 state troopers

>testifying as to his FSTs, as well as the other visual

>neurological eye-movement observations they are now trained to

>do, lots of luck.

>

>I agree that his attorney seems to be letting the DA push him

>around a bit, but as a practical matter, this kid has an

>uphill battle at trial, and I'd definitely suggest a plea

>bargain, hopefully better than he has at this point, but I

>also wouldn't let this one slip away!!

>

>Much depends on the impressions the State Troopers make, as

>oppossed to whether they're telling the truth or not, but I

>find it difficult to see a motive for this unless the kids

>driving was erratic in the first place, indicating being under

>the influence or "partial influence."

 

There certainly could be some truth to the possibility that he was driving erratically. He's not the best driver I've ever ridden with, and I think they could make a strong case for careless driving, just based on my own observations of his driving. That said, I am completely convinced that he had no intention of selling the medication. As for impairment, there is no doubt that such medication can cause that, and if you couple it with the stress of the loss of a grandparent, being harried to get things done before a long drive out of state, and the sheer nervousness that usually arises from being stopped by the police, any number of factors could be at work here.

 

I'm not claiming that he is totally blameless in this situation, but I do believe the cops were overzealous with the charges, particularly the criminal charges about possession with intent to distribute and drug paraphernalia.

[BuckyXTC]

>Just a comment from the medical perspective. Opiods should

>almost never be prescribed for headaches (with the rare

>exception of acute head trauma and meningitis), especially for

>migraines. There is no such thing as "breakthrough pain" when

>it comes to migraines. The term "breakthrough pain" refers to

>an exacerbation of a chronic pain condition (such as cancer

>which has spread to the bone). Migraine pain is not chronic,

>by definition. It is episodic.

 

Unicorn: Thanks for your post. His official medical diagnosis is "chronic migraine", and this comes from a board certified neurologist. The medications prescribed were chosen after everything else failed.......a variety of the triptan class of drugs and ergotamine drugs which seemed to have little or no effect. I believe they also tried Neurontin. He had CT scans and MRI's as well, with no physical source of the pain.

 

I do believe you may be onto something with the possibility that the medications he is taking may in fact be causing or contributing to the headaches. I would love to see him taking anything but what he is currently prescribed. I think opioids are bad news over the long haul. I also suspect he will have to undergo some sort of detoxification process with naltrexone or something along that line to get switched to another drug.

 

Maybe it is time for him to seek a new doctor and a different treatment regimen.

 

I do appreciate your perspective on his medication issues.

[ErikMcAlister]

Driving while using Percocet?

Your friend has no case.

[+ Lucky]

RE: One for those who hope to be some day.

 

"I love trials - no matter what. Mo' money. I charge $300 per hour in court, and $175 for office hours and preparation time."

 

I guess you can charge whatever you want when you have no clients! You said that you weren't working when you started posting here, then you moved from SF to Portland, and now you are moving to Brooklyn. Those multi-state law licenses come in handy, huh?

 

Personally, I charge a minimum of $35000 just to take the case. Trial is extra!

[joel304]

Unless I missed it, the original poster mentioned nothing of Percocet. If, however, the driver was under the influence of a narcotic (legally prescribed or not) while driving, he is in violation of state law.

 

The search (post arrest) is somewhat debatable, in that there were no imminent threats to the cops, being that he was detained prior to the search. Not a big winner though.

 

Oops, I just read Percocet. He's fucked. He should accept a plea, unless he has the finances for a trial. However, should he lose at trial, he may face a stiffer penalty. If he has the cash, he should posture as if he is preparing for trial, and exhaust all avenues for delay, including, but not limited to continuances. It is quite possible that the DA will offer a better deal, if he/she is faced with mounting paperwork, time spent dealing with continuances, contesting blood and/or urine samples, etc. It won't be cheap.

 

Unless there is police misconduct (it doesn't sound like it, at least with regards to evidence) or a loss of paperwork, etc., he should posture for trial and deal at the last minute. Believe me, they will deal.

[Guest]

> His official medical

>diagnosis is "chronic migraine", and this comes from a board

>certified neurologist.

 

Migraines are chronic conditions, so to call a migraine a "chronic migraine" is redundant. When chronic daily headaches have arisen from what was previously a migraine, the term "transformed migraine" can be used, but, as the name implies, it just means that the migraine has become a chronic daily headache. I have attended quite a few lectures on migraines and other headaches, and they always caution against using opiods for headaches, especially recurring ones. Opiods are truly a black hole which will often require inpatient treatment to get out of.

Migraines are incredibly common, and I have successfully treated probably over 100 and never prescribed a narcotic, except in decreasing amounts in someone who has become dependent, and I'm in the process of getting the patient on a more sensible regimen. Usually I find that those who get into trouble with opiods find themselves there because they bounce around ER's (whose goal is to get the patient out as fast as possible, especially if the patient shouldn't be there in the first place). I'm thinking back and cannot remember a single time seeing a patient whose opiods were prescribed by a neurologist.

If a neurologist was indeed prescribing your friend's opiods, he must not have a great imagination. There are more migraine treatments than Fabio has hairs on his head. Among the many classes of medications used include beta-blockers, NSAIDS, tricyclics, Calcium-channel antagonists, anticonvulsants, serotinergic drugs, MAOI's, triptans,

Angiotensin-II receptor blockers, dichloralphenazone, phenothiazines, and GI motility drugs. Each of these classes has multiple medications in its class, some over a dozen. Humans do not have the lifespan to "try all of them" (at least not adequately).

[Guest]

>As for the pill

>cutter, the Percocets are scored tablets, and sometimes he

>takes less than a full tablet, not wanting to take any more

>than is necessary.

>

Now that really doesn't make sense. If the tablet is already scored, why would you use a pill splitter? If anything, using a pill splitter in a scored tablet risks breaking the tablet into multiple pieces.

Is it possible that your friend has some serious problems with good judgment? I don't understand what he would have to gain by telling an officer in a conservative jurisdiction that he was "seeing his boyfriend" when simply stating he was seeing a friend would have truthfully accomplished the same goal.

It wouldn't hurt to get a second legal opinion (well, except for the costs which will be high in any case), but this story sounds as strange as some of the ones I hear in my job...

[Guest Tristan]

>Now that really doesn't make sense. If the tablet is

>already scored, why would you use a pill splitter? If

>anything, using a pill splitter in a scored tablet risks

>breaking the tablet into multiple pieces.

 

Not so. I cut pills half with a good pill cutter without the pills breaking into multiple pieces. It's just a matter of lining up the pill carefully. On the other hand, trying to break the tablet in half actually raises the odds of getting multiple pieces or an uneven dose because the scoring is very superficial. Anyone who has ever carefully used a good pill cutter knows that they work quite well with highly accurate results. So why not just drop the pill cutter issue in this discussion. I really don't think it's relevant.

[BuckyXTC]

Tristan:

 

I totallly agree.....I think the pill cutter issue is moot, and obviously there are a hosto of reasons to use a pill cutter, otherwise why would you be able to buy them in most any pharmacy.