A common misconception is that a DUI arrest only stems from alcohol consumption. In Florida, however, you can be charged with driving under the influence (DUI) even if your blood alcohol content (BAC) is below the legal limit of 0.08% if other substances impair your normal faculties. This includes certain over-the-counter (OTC) and prescription cough medicines. This comprehensive article delves into the complexities of DUI charges related to cough medicine in Florida, covering the relevant laws, types of medications, law enforcement procedures, and defense strategies.  

Understanding DUI in Florida: Impairment, Not Just Alcohol

Florida Statute 316.193 defines DUI as driving or being in actual physical control of a vehicle while:  

  1. Having a BAC of 0.08% or higher; or
  2. Being under the influence of alcoholic beverages, any chemical substance set forth in Florida Statute 877.111, or any controlled substance listed in Chapter 893, when affected to the extent that the person’s normal faculties are impaired.  

Crucially, the law uses the disjunctive "or," meaning impairment is sufficient for a DUI charge, even without a high BAC. "Normal faculties" include but are not limited to:  

  • Eyesight
  • Hearing
  • Speech
  • Mental clarity
  • Physical coordination

Types of Cough Medicine That Can Lead to a DUI

Several ingredients commonly found in cough medicines can cause impairment:

  • Alcohol: Many liquid cough syrups contain alcohol as a solvent. The percentage varies, but even small amounts can contribute to impairment, especially when combined with other medications or pre-existing conditions.  
  • Dextromethorphan (DXM): This is a common cough suppressant found in many OTC medications like Robitussin DM, NyQuil, and Theraflu. In high doses, DXM can produce dissociative effects, impairing judgment, coordination, and perception.  
  • Diphenhydramine: This antihistamine is used to treat allergies and is also found in some cough and cold medications like Benadryl and NyQuil. It can cause drowsiness, dizziness, and impaired reaction time.  
  • Codeine and other Opiates: These are prescription cough suppressants that can cause significant drowsiness, dizziness, and impaired cognitive function. Due to their high potential for abuse and dependence, they are strictly regulated.  

How Law Enforcement Conducts Roadside DUI Investigations

When an officer suspects a driver is impaired by something other than alcohol (or in addition to alcohol), they follow a similar protocol as in standard DUI investigations, but with a greater emphasis on observing specific signs of impairment beyond the smell of alcohol:

  1. Traffic Stop: The stop must be lawful, based on reasonable suspicion of a traffic violation or other illegal activity.
  2. Initial Observation: The officer will observe the driver's behavior, speech, and appearance. They will look for signs such as:
    • Slurred speech
    • Bloodshot or watery eyes
    • Dilated or constricted pupils
    • Unsteady gait
    • Confusion or disorientation
    • Slowed reflexes
  3. Field Sobriety Tests (FSTs): These are standardized tests designed to assess a person's balance, coordination, and cognitive abilities. The three standardized FSTs are:
    • Horizontal Gaze Nystagmus (HGN): Involuntary jerking of the eyes as they follow a moving object. Certain patterns of nystagmus can indicate impairment. This test is less reliable for drug impairment than alcohol impairment.  
    • Walk-and-Turn (WAT): A divided attention test that assesses balance and coordination while following instructions.
    • One-Leg Stand (OLS): Another divided attention test that requires the person to stand on one leg while counting aloud 
  4. Drug Recognition Expert (DRE) Evaluation (If Available): If the officer suspects drug impairment, they may call a DRE. These officers have specialized training in recognizing the signs and symptoms of impairment caused by different categories of drugs. They conduct a 12-step evaluation that includes:
    • Interviewing the arresting officer.
    • Performing preliminary examinations.
    • Eye examinations.
    • Divided attention psychophysical tests.
    • Vital signs examination.
    • Dark room examinations.
    • Muscle tone examination.
    • Checking for injection sites.
    • Subject’s statements and other observations.
    • Toxicological examinations 
  5. Chemical Testing: If the officer has probable cause to believe the driver is impaired, they will request a blood or urine test. In cases where the driver blows a 0.00% BAC on a breathalyzer, a blood test is crucial to detect the presence of drugs.

Signs of Impairment Police Look For

Beyond the standard signs of alcohol intoxication, officers look for specific indicators of drug impairment:

  • Pupil Size and Reaction: Certain drugs can cause pupils to constrict or dilate abnormally or react slowly to light.  
  • Muscle Tone: Some drugs can cause rigid or flaccid muscle tone.
  • Speech Patterns: Speech may be rapid, slow, or disjointed.
  • Body Tremors or Agitation: These can be signs of stimulant use.  
  • Nystagmus (other than horizontal): Vertical or resting nystagmus can indicate certain drug use.

Chemical Testing When BAC is 0.00%

If a driver provides a breath sample that registers 0.00% BAC but the officer still suspects impairment, a blood or urine test becomes critical. These tests can detect the presence of various drugs, including those found in cough medicines. Refusal to submit to a chemical test can result in automatic driver's license suspension under Florida's implied consent law.  

The Criminal Case Process and Defense Strategies

The DUI case process for drug-related DUIs is similar to alcohol-related DUIs:

  1. Arrest and Booking: The initial arrest and booking procedures are the same.
  2. Administrative Suspension Hearing (DHSMV Hearing): This hearing addresses the administrative suspension of your driver's license.  
  3. Arraignment: You will be formally charged and enter a plea.
  4. Pre-Trial Motions and Discovery: This is where your attorney will investigate the case, challenge the legality of the stop and testing procedures, and file motions to suppress evidence.
  5. Plea Negotiations: Your attorney will attempt to negotiate a favorable plea agreement with the prosecutor.
  6. Trial: If a plea agreement cannot be reached, the case proceeds to trial.
  7. Sentencing: If convicted, the judge will impose a sentence.

Defense Strategies for Cough Medicine-Related DUIs

  • Challenge the Legality of the Stop: If the initial traffic stop was unlawful, any evidence obtained afterward, including FST results and chemical test results, may be suppressed.  
  • Challenge the Reliability of FSTs: FSTs are subjective and can be affected by factors unrelated to impairment, such as age, medical conditions, and environmental factors.  
  • Challenge the Accuracy of Chemical Testing: The chain of custody, testing procedures, and calibration of testing equipment can be challenged.
  • Lack of Proof of Impairment: The prosecution must prove beyond a reasonable doubt that your normal faculties were impaired. Your attorney can argue that the observed signs were not indicative of impairment or were caused by other factors.
  • Medical Explanation: If you have a legitimate medical condition that could explain the observed symptoms, your attorney can present expert testimony to support this defense.
  • Proper Use of Medication: If you were taking the cough medicine as prescribed or according to the OTC instructions, this can be a mitigating factor.

Key Considerations

  • Read Medication Labels Carefully: Pay attention to warnings about drowsiness, dizziness, or impaired coordination.
  • Consult Your Doctor or Pharmacist: If you are unsure about the potential effects of a medication on your driving ability, consult a healthcare professional.
  • Never Drive While Impaired: If you feel any effects that could impair your driving, do not get behind the wheel.

While it may seem surprising, you can be charged with DUI in Florida for driving while impaired by cough medicine. Understanding the law, the types of medications that can cause impairment, and the procedures law enforcement follows is crucial. If you are arrested for DUI related to cough medicine or any other drug, it is vital to contact an experienced Florida DUI defense attorney immediately. They can protect your rights, investigate your case thoroughly, and develop a strong defense strategy to achieve the best possible outcome.

Call Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation

Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged in Florida with a criminal or traffic offense. They serve all 67 counties in Florida and are available 24/7/365 at 1-888-484-5057 for your FREE consultation.