Disciplinary Action – Scope of Practice Certified Registered Nurse Practitioners

Certified Registered Nurse Practitioners (“CRNP”) can prescribe medication, examine patients, diagnose illnesses, and provide treatment, much like physicians do. In fact, nurse practitioners have what’s referred to as “full practice authority” in 20 states, meaning that they do not have to work under the supervision of a doctor. In the Pennsylvania, however, while CRNPs still have more authority than RNs, they must have a medical doctor sign on certain patient care decisions.

Nurse practitioners are increasingly becoming integral to medical teams as more and more hospitals and healthcare facilities are utilizing their expertise. Their experience as working nurses gives them a unique approach to patient care, while their advanced studies qualify them to take on additional duties that are usually left to physicians.

There are many different ways CRNP are exposed to practicing outside the scope of their practice.  Dispensing medications incorrectly or without a prescription is the first and foremost.  CRNPs are especially vulnerable to disciplinary action as they hold prescriptive authority to dispense Schedule II and other non-scheduled medications.  This blog will address CRNP’s legal duties.

CRNP’s must collaborate with a physician who holds a current license to practice in the Commonwealth.  When acting in collaboration with a physician in a “collaborative agreement” within the CRNP‘s specialty, the CRNP may perform comprehensive assessments of patients and establish medical diagnosis, perform and supervise diagnostic tests, institute referrals, develop treatment plans, establish prescriptive authority approvals for pharmaceutical treatments, complete admission and discharge summary’s, and order various supplemental therapeutic medical care. Supplemental medical care includes dietary plans, home health care and hospice, durable medical equipment, physical therapy and dietitian referrals, respiratory and occupational therapy referrals, and perform initial assessments of methadone treatment evaluations.

Methadone treatment and evaluations can be accomplished in conjunction with approval of a physician in the Pennsylvania methadone treatment regulations.  In this time of opioid crisis, CRNP’s prescribing methadone is a huge issue. CRNPs have sought clarification of their authority and qualifications to prescribe Suboxone.  63 PS § 21.283(c) of the Pennsylvania Code sets forth CRNP’s prescriptive authority.


Every two years CRNP must complete 16 hours of board approved CE credits in pharmacology.  Initially, CRNPs require 45 hours of coursework specific to advanced pharmacology through the a professional nurse education program within five years before initial prescriptive authority approval. Board prescribing and dispensing schedule II restrictions include only 30-day supply authorizations and only in conjunction with a collaborative agreement setting forth such authorization by the physician in the agreement.

CRNP are limited to prescribing 90-day supplies of schedule III and IV controlled substances, which physician based authority is identified in the collaborative agreement. CRNP may not delegate prescriptive authority to other RNs working in the practice. CRNPs may not issue pre-signed prescriptions, must receive a national provider identifier number, and all prescriptions must include the CRNP’s name, title, and Pennsylvania CRNP certification number.  All labeling, packaging, dispensing, administering, and prescribing must be done in compliance with all other federal and state regulations and Pennsylvania Department of Health chapter 28 code of regulations.

CRNPs must register with the DEA and follow DEA minimum standards when prescribing, administering or dispensing controlled substances.  DEA federal regulations require the CRNP to properly conduct and documents their initial evaluation, physical examination, receipt and review the patient’s medical and medication history.  The physical evaluation includes examining the heart, lungs, vital signs, pain level, and body functions that relate to the patient specific complaint. Re-evaluation‘s and follow up should follow accordingly.

Patient counseling and medical records review are warranted to properly document symptoms observed and reported, diagnosis of any condition for which the controlled substance is being given, and the directions for administration. If the CRNP continues to prescribe the controlled substance, medical records must reflect changes to symptoms observed and reported and modification, alteration, or a limitation of any diagnosis of the condition for which the controlled substance is being given and the directions given to the patient.

The CRNP may dispense emergency, short-term prescriptions in conjunction with examination, evaluation, and proper diagnosis if such is then documented in the patient’s medical record.  Any emergency prescription must be delivered to the pharmacist within three days, and the emergency prescription may not be refilled or issued consecutive to an emergency prescription unless there is a follow-up physical examination.

Compliance with the terms and conditions of CRNP prescriptive authority is not necessarily compliance with Nursing Board scope of practice or standards that are acceptable and the prevailing practice.  Compliance with the above PA Code minimum standards does not restrict Nursing Board disciplinary action CRNPs based upon violations of the Drug Act or any other nursing licensing regulation.

Federal and State Drug Act issues address improper prescription dispensing, improper charting, failing to chart, or performing medical malpractice in the course of acting outside the scope as a CRNP.   Mere compliance with PA Code rudimentary medical practice and charting responsibilities and basic medical care giving duties does not shield the CRNPs from scope of practice and other claims.

CRNP scope of practice is governed by the collaborative agreement by and between the supervising physician and CRNP along with any large scale institutional employment job position limitations. Improperly administering medications earlier than the time set forth in a prescription and refilling daily, weekly, or 30 day prescriptions will well necessary trigger employment or board based disciplinary issues.

This is why the prescriptive authority established in the collaborative agreement between a physician and a CRNP  must satisfy very specific requirements. The collaborative agreements must be in writing, identifying the category of drugs this specific CRNP is allowed to prescribe as per their certified practice.   The collaborating physician obviously must sign the agreement and a copy must be submitted to the Bureau Professional and Occupational Affairs.

The agreement must be updated every two years, or whenever the agreement is changed, and must identify the professional liability insurance limits the physician’s policy provides.  Anytime the prescriptive authority in the collaborative agreement is updated or terminated, the CRNP (and no one else) shall notify the Board in writing of such changes. The CRNP is allowed to advertise or publicly display sign identifying their participation in a medical practice. A licensed CRNP may include such nomenclature after their name on any letterhead, business cards, and practice advertising.

CRNP must undertake and only engage in their specific practice area and only perform procedures in which they have necessary knowledge, preparation, experience and competency to properly execute.  CRNP practice is limited in scope to only their specialty and consistent with their CRNP collaborative agreement. This is the scope of practice provision that allows for the allegation CRNP prescribing medication drugs or other items outside the scope of their practice.

Certification as a CRNP may be suspended, revoked, or otherwise subjected to remedial measures when, after notice of and an opportunity for a hearing, the board finds that a CRNP has engaged and performed medical functions and tasks beyond the scope of practice permitted for a CRNP, that CRNP specially, or in violation of the collaborative agreement.  This is the general, catchall provision, for a potential penalty, based upon the allegation that a CRNP performed a medical function for which the CRNP does not have the necessary knowledge, preparation, experience and competency to perform properly or is not qualified under the CRNP Act.

Call me to discuss your case.


Prescription Drug History and the Mental and Physical Evaluation

To help prevent prescription drug abuse and protect the health and safety of Pennsylvania citizens, Pennsylvania’s Prescription Drug Monitoring Program (PA PDMP) collects information on all filled prescriptions for controlled substances. This information helps health care providers safely prescribe controlled substances and helps patients get the treatment they need.

PA PDMP’s new initiative seeks to integrate the PDMP system with the electronic health records (EHRs) and pharmacy management systems of all eligible health care entities in Pennsylvania.

As well, as of July 7, 2017, the Pennsylvania Prescription Drug Monitoring Program is sharing data with 11 other states and D.C. Interstate sharing of data helps prescribers and pharmacists get a more complete picture of their patients’ controlled substance prescription histories, regardless of which state they filled their prescription in.

In New jersey, on May 1, 2017, the emergency rules that went into effect on March 1, 2017 were readopted by the Attorney General and the Board of Medical Examiners.  These rules concern limitations on prescribing, administering, or dispensing of controlled dangerous substances, with specific limitations for opioid drugs, and establish special requirements for the management of acute and chronic pain.  These limitations and requirements apply to physicians, podiatrists, physician assistants, and certified nurse midwives.

These new rules affect how professional licensees prepare for Mental and Physical Examinations (MPE). If you have read my other blogs, you should understand the MPE is a compelled medical doctor Drug and Alcohol evaluation investigating a licensee’s potential impairment and continued ability to practice their profession safely. Licensing board orders compelling MPEs require professionals to provide their medical records. The lookback period for medical treatment and care depends on the nature and extent of a licensee’s medical needs.

Historical surgeries (dental orthopedic, or OB/GYN for example) typically reveal a prescription history.  It is these prescriptions of which the MPE expert is interested. The new PA PDMP discussed above is now a means through which the MPE expert (a medical doctor with access to the database) can learn of a licensee’s prescription drug history.

As a medical doctor, the MPE expert has access to licensees’ historic prescription drug use.  The MPE medical experts can review the  PA PDMP database similar to a treating physician who has a legal obligation to check the PA PDMP  before writing a prescription or a pharmacist prior to dispensing a medication.  The licensee who does not bring corroborative prescription records or provides a false historical record severely taints their credibility in the MPE.


Call me to discuss your MPE ordered through your Pennsylvania licensing Board.


Social Media — Facebook, Instagram and State Licensing Board Prosecutions

Social media and the advent of voluntary public display of everything is starting to affect Pennsylvania’s professional licensing board investigations.  For the last ten years I have consistently represented client’s under investigation for drug diversion and theft.  These cases typically stem from hospital and nursing home based investigations.  A new twist in the investigatory practices of these cases has emerged.
It is important to realize how state board investigators are now utilizing social media as an investigatory tool.  Voluntary picture posts on Facebook, Instagram, or other websites will are now used as the professional’s own statements. Facial recognition software identifies and attaches names to various people in most photographs.  Aspiring and licensed professionals should pause when choosing which if any photographs to post or in which they are included that others are posting. This should give you the professional great concern.
Pennsylvania’s Department of Attorney General, Bureau of Narcotics Investigations (BNI) and licensing board investigators have begun to search social media for names, addresses, the identity of complaining witnesses, and/or information to aide their criminal and licensing prosecutions.  Investigators are learning —  through a target’s own social media self-promotion — the target’s social activities, accomplices, associates, friends, and favorites hang outs.  Many witnesses that would otherwise never be found are located, interviewed, and intimidated.
As well, during a client’s recent Nursing Board Mental and Physical Evaluation, the western Pennsylvania based psychiatrist asked my nurse client of her social media participation. This psychiatrist revealed he had searched Facebook, Instagram, and other social media outlets in preparation for the psychiatric drug impairment evaluation. The doctor sought evidence to confirm and corroborate my client’s statements during her evaluation about her social activities and drinking tendencies. The psychiatrist sought photographic and statement evidence which could reveal my professional client’s evaluation statements may have been inconsistent with social media and/or statements is medical records to her doctors.

Credibility is the most important piece of evidence in an independent medical examination and at a licensing application or disciplinary hearing.  The witnesses I  present at a licensing hearing (live, via telephone, or in a letter) corroborate and strengthen my professional client’s reputation, character, and credibility.
Photographs of social celebration in the context of disciplinary hearings based upon accusations of drunk driving or drug and alcohol impairments constitute important cross-examination evidence.  When a professional voluntarily hands to a psychiatrists, criminal or licensing board investigators evidence against them (or life style pictures that may poorly depict that licensee) it makes my defense harder and the prosecutor or psychiatrists impairment investigation easier.  DO NOT DO THIS  TO YOURSELF.

Opioid Addiction and the Pharmacist or Doctor’s New Legal Responsibility

Two New York Times headlines affirm the federal and state government responses to pharmacists and medical practitioners’ complicity in the national opioid epidemic.   C.D.C. Painkiller Guidelines Aim to Reduce Addiction Risk and The End of Prescriptions as We Know Them in New York say it all.

Commonwealth of Pennsylvania pharmacists and medical practitioners must become fully familiar with new federal opioid prescription guidelines. In Pennsylvania, the Commonwealth Medical Board released New Opioid Prescribing Guidelines. In 2014 Pennsylvania House Resolution 659 of 2014 directed the Joint State Government Commission to establish a legislative task force and appoint an advisory committee to study opioid addiction in Pennsylvania.  As well, the Effective Prescribing Practices and Pain Management Task Force drafted “Pennsylvania Guidelines on the Use of Opioids to Treat Chronic Noncancer Pain.”

These Commonwealth medical regulatory publications establish a significantly heightened corresponding responsibility for pharmacists filling opioid prescriptions and basic prescription writing responsibility for doctors when writing opioid prescriptions.  New York’s huge step in eliminating all written prescriptions, which eliminated 85% of opioid prescriptions in New York State, is coming to the Commonwealth of Pennsylvania.

The new federal CDC dispensing guidelines, provide clear recommendations about opioid prescribing for primary care physician’s treating adult patients with chronic pain outside of active cancer treatment, palliative care, or end-of-life care. These guidelines, in conjunction with Pennsylvania’s House Resolution 659 of 2014, set forth proper an effective prescribing practices.

These federal and state directives, along with many more, provide a clear framework for disciplinary action against physicians or pharmacists who violate the guidelines. Practitioners who fail to decrease the amount of opioid prescriptions written in comparison to their geographic peers is easy secured proof of dispensing conduct in violation of new and developing guidelines.  As well, malpractice claims against either the doctor or pharmacist, constituting a reportable disciplinary event, will also trigger disciplinary investigations and potential disciplinary actions.

Please call to discuss any investigation of your pharmacy, pharmacist, or your medical practices prescription writing histories. These investigations may either be ongoing or commenced by state or federal DEA agents, board investigators, insurance malpractice defense attorneys, or plaintiffs attorneys.

Employee Assistance Drug Programs — Be Careful What You Disclose

This blog shall focus on the new phenomenon of employment assistance (EAP”) programs. Employee/professionals are introduced to these programs in the context of positive drug tests in the work place. The extent of self-disclosure and participation within these programs has become a source of information for licensing board investigators and PHMP programs. Participant disclosure in EAPs of drug use or mental health history could be discovered by board investigators and backfire against the professional.

Initially, some employers require the employee/licensee to report to their licensing board the positive drug test result and enrollment in the EAP.  This Blog especially applies to you.  Board investigators will seek out and secure release of your EAP case worker files, notes, and treatment facility disclosures even if there is no licensure reporting requirement.  Do not assume your board will not discover your EAP enrollment.

As such, the issue is to what extent must you disclosure to a EAP case worker.  What is complete self disclosure? What is complete? Does an employee need to release to the EAP: 1)medical records, 2) psychological or psychiatric treatment records, or 3) provide full self disclosure of prior recreational or adolescent drug use? Disclosure versus signing medical authorizations are two separate things. Never sign medical releases for any, any, any, any prior treatment history.

Sometimes, the EAP program is administered at a local treatment? To whom are you the employee/licensee disclosing prior drug use? What are treatment facilities’ legal obligations of disclosure to the state? Some treatment facilities, if they know a EAP participant is a licensed professional, will administer a different treatment program and protocol that are aligned with the PHMP. Here especially, do not sign blanket medical releases.  Also, make sure all disclosure, if you make them, are completely confidential with no right of dissemination by the EAP (within the treatment facility) to any one.

The professional should not lightly enter a EAP. The professional should not voluntarily disclose or sign releases for medical, psychiatric, or drug use histories in these programs. Again, what is complete and to whom is the licensee disclosing a history? All information given to the EAP will be available to the professional board investigator. Thereafter, PHMP caseworkers will seek to secure statements and information in EAP case worker possession. The PHMP investigator and PNAP caseworker will seek to corroborate facts given to them versus the EAP.

Consequently, disclosure in an EAP of historical drug, alcohol, or medical histories not necessary to EAP participation and employment retention may result in further treatment and license requirements. One doesn’t necessarily have to “drink the Kool-Aid” or be “all in” in the EAP program to maintain employment. It is the factual disclosures in the EAP program that PHMP caseworkers will used against the licensee in the future.

As my prior blogs state, the licensee must be very careful about the decision to go enter the PHMP. Don’t be scared into the program by the caseworker and the various letters of concern that they send out. Unless one is ready willing and able to admit a drug or alcohol addiction which has rendered you incapable of practicing your profession safely, statements to PHMP, PMP, PNAP, PHARC or any other licensing board drug and alcohol investigator should be severely curtailed.

Attempting to save one’s job by going into an EAP as a result of violating drug and alcohol procedures, protocols (of which the employment-based disciplinary rules, procedures, and manuals are ripe with regulations regarding the use of drugs) could end up causing you the professional their license. Call me to discuss.

Employment Manuals Regarding Drug Testing and Evidence of Drug Use

A recent spate of Pennsylvania Unemployment Compensation Board of Review decisions does not bode well for the professional licenses. Each case addresses employees fighting for unemployment benefits stemming from drug related employment actions. The two cases are Schuylkill Energy Resources, Inc v. Unemployment Compensation Board of Review and Ramon Figueroa v. Unemployment Compensation Board of Review. Both cases deal with work place related drug use and working under the influence as a basis for disciplinary action and termination.

In each case the employer established termination and disciplinary procedures in employment manuals. Each manual included provisions for automatic termination if an employee tested positive for  drug or alcohol (in urine or blood) drawn during work. One employer even allowed itself the opportunity to establish through a professional opinion and a scientifically valid test (a “D.R.E.”) that the person who is affected by the drug or alcohol or combination of both was under the influence while on the job.

These cases set forth the legal and judicial authority for employers who employ professional licensees to set forth in their employment manuals disciplinary action for on the job drug or alcohol use, legal or otherwise. On the job now means presenting symptoms that would warrant drug tests that produces a positive result. The issue is not reasonable suspicion or probable cause of criminal activity. Rather, it is the employer has any basis to believe that the employee/professional licensee is at work impaired, or under the influence, of any drug or alcohol.

The cases also stand for the proposition that the employer can use a drug recognition expert (“D.R.E.”) to testify about the nature and extent of the employee’s drug or alcohol blood or urine levels and that such rendered the person impaired while on the job. Significantly, the cases do not differentiate between legalized marijuana and alcohol or prescription medications. The cases do not differentiate between legal or criminal conduct. It is the mere presence of a substance in the person’s bodily fluids for which an employee or DRE can testify about an impairment that would warrant termination and denial of benefits in accordance with an employment manual and not the law.

This standard employment related drug testing policy and procedure will be implemented in the professional license setting. These cases allow for termination based upon legal use of marijuana. The legalization of marijuana will have no bearing on these cases.

More importantly, any and all evidence derived in an employment related drug and alcohol investigation will be provided to the Department of State for a license/disciplinary action. Submission to and securing the results of workplace related drug tests are important parts of a licensee’s offense.  As my other blogs have stated, losing one job based upon the refusal to submit to drug testing is losing a battle but winning the war in a license defense case.

Under no circumstances should you voluntarily submit to any drug testing that would incriminate you and/or provide either employer, but more importantly the state, ammunition in any broader license prosecution. Remember that your drug and alcohol workplace related testing results will be turned over to the state and become the basis for any and all disciplinary action. The lack of evidence available to a state investigator, prosecutor, hearing officer, or professional license board is more important than having to explain away to those same persons the presence of an illegal substance in your blood or urine. I’d rather you lose your job then test positive for any illegal substance.

Please call me to discuss your work place related drug testing manual, employment related investigations, or professional license disciplinary action is a result of the legal use of marijuana or alcohol.

DUI Charges and Prescription Medications

This holiday season parties will be plenty, alcohol will be flowing, and prescription medications will be taken. The day before Thanksgiving has been rated as the highest DUI arrest days in the county.  The driving under the influence problems arrests stemming from doctor prescribed medications, purchased at a pharmacy, and legally possessed and ingested, are rising.  They also count as a DUI the same as a DUI from alcohol. Whether combined or not with alcohol, these medication can still render you incapable of safe driving and guilty of DUI.

This happened to Ms. Graham on August 1, 2012.  In a Butler County in the Commonwealth Pennsylvania, Ms. Graham was driving too slow for the road conditions and was pulled over for investigation by a 16 year police veteran, knowledgeable of the signs and symptoms of individuals driving under the influence of drugs or alcohol. He concluded that Ms. Graham was unable to operate her motor vehicle safely as a result of an actual or physical impairment, and arrested her for alleged DUI.

Ms. Graham was charged with violating 75 Pa. C.S.A. § 3802(A)(1) and (D)(3). Subsection (D)(3) focuses on individuals operating or in actual physical control of the movement of a vehicle under the combined influence of alcohol and a drug or combination of drugs to a degree which appears the individual’s ability to operate ability to safely drive, operate or be an actual physical control of the movement of the vehicle.

Ms. Graham went to trial. The officer testified that he observed Ms. Graham’s vehicle traveling below the speed limit and take evasive action in the road when the conditions were dry, clear and nothing was in the roadway requiring any type of invasive action. After initiating a traffic stop and approaching the vehicle, it appeared that Ms. Graham was talking on her phone and did not acknowledge him. Ms. Graham then “fumbled” around her wallet looking for her license and registration, but continued to speak on the phone.

Her eyes were bloodshot, glassy, and her speech was slow and slurred. The officer asked Ms. Graham what, if anything, she drank that evening. She voluntarily answered that she did not drink alcohol but that she did take her prescribed medications of Celexa, HydroPam, and Vistaril.  She stated the medications were prescribed for her depression and bipolar disorders. Ms. Graham refused the to submit to a blood draw, acknowledging there would be evidence of her medications in her blood.

The Commonwealth closed is case arguing that the officer’s observations and her failure on three field sobriety tests was insufficient evidence upon which the jury could find her guilty of violating § 3802(d)(3), operating the motor vehicle under the influence of alcohol and drugs in any combination. Significantly, the Commonwealth did not present expert testimony as to the medical effect of Ms. Graham’s admitted prescriptions on individual of her height and size.

In sum, the Commonwealth evidence was only the police officer’s testimony.  It did not present evidence of any blood or alcohol tests suggesting the presence of any medication or alcohol in Ms. Graham’s body.  Ms. Graham’s admission of drug ingestion was the only evidence of such.  The officer did testify about his observations of Ms. Graham’s physical demeanor on the night in question. The Commonwealth did not qualify him as an expert, but as a layperson with significant experience in these matters.

The jury found Ms. Graham guilty of violating 75 Pa.C.S.A. §3802(d)(3), driving under the influence of drugs that rendered her incapable of safe driving. Ms. Graham filed a petition for judgment of acquittal, asking the trial court to vacate the jury’s verdict, arguing the Commonwealth did not present sufficient evidence at the time of trial to meet its burden of proof. The trial court agreed.

The Commonwealth appealed to Superior Court, which reversed on November 26, 2013. Commonwealth v Graham, 2013 Pa.Super.306 (Pa. Super 2013).   Superior court rested its decision on the seminal case of Commonwealth v. Griffith, 32 A.3d 1231(Pa. 2011).  In Griffith the parties introduced no expert testimony as to the pharmacological properties of the drugs that the defendant ingested whether any of the drugs could have impaired the defendants ability to safely drive or call whether a combination of the drugs could have impaired the defendants ability to safely drive.  The Supreme Court stated the focus of Section 3802(d)(2) is not upon the type of evidence introduced, but upon whether the totality of the evidence proved to a  jury or fact finder that the defendant’s inability to drive safely “was the result of the influence of a drug or combination of drugs.”

The Graham Court then applied the law of Griffith to the facts of the case and expressly held that the evidence (an experienced police officer closely observed [the defendant’s] behavior, demeanor, unsteadiness, and inability to perform field sobriety tests, all of which led him to request laboratory tests for the detection of controlled substances in [the defendant’s] blood and the defendant’s admission to taking prescription medications) was sufficient to support the defendant’s conviction for driving under the influence of a drug or combination of drugs.

The lesson from both of these cases is to not talk or say anything incriminating to the police officer who stops you for a traffic stop.  Do not admit, acknowledge, suggest, explain, or answer any questions regarding any prescription medication ingestion. These are incriminating questions seeking answers or blurt outs that will be used against you. The police officer will put in his police report every word you utter regarding your medication use.

Consequently, if you refuse the blood test, to which you are allowed, the only evidence of drug use will be your own words. Admissions or tacit statements saying “I took my prescribed medications for…” or “Here is the medication I took, I have a prescription for this…” will be used against you. The mere fact that you are driving and the officer believes these medications rendered you incapable of safe driving is the problem.  Once you admit to taking the medication, the fact finder may consider that fact as the basis to for the officer’s description of your “odd” behavior during the traffic stop.

The Laws in the Commonwealth of Pa do not require the police to introduce an expert to testify how the medication affects the ability to drive, just that you took the medication and the office can testify how you actually were driving. It is then for the fact finder or Jury to decide if you were unable to operate a motor vehicle safely or you were incapable due to the effects of your medication.

So do not admit to taking any medication for any medical condition.  Call me about your case.

ADHD and false allegations of Driving Under the Influence

Currently, absent a specific odor of alcohol, individuals suffering from ADHD who drive while under the influence of prescribed ADHD medications or are non-medicated can still be charged with, and found guilty of, violating the DUI or DAI statutes of most jurisdictions.  In Pennsylvania an officer can testify, with no intoxicant basis, that an operator of a motor vehicle is incapable of safe driving simply based upon behavioral observations. 

For the DUI practitioner, providing a judge with an alternative explanation for a client’s erratic and suspicious behavior while operating a car, and during a motor vehicle traffic stop or field sobriety test, is one way to prevail in a DUI prosecution.  Society’s current fixation on percentages of our population who have been, or should be, diagnosed with juvenile or adult onset attention deficit hyperactivity disorder parentheses (“ADHD”) presents just such an explanatory opportunity to a willing bench.

The physical manifestations of individuals suffering from ADHD are important factors about which  traffic cops or DUI police officers should be cross-examined.  This is because there are significant behavioral similarities in individuals who fail sobriety test due to intoxication and those who fail due to their ADHD behavioral mannerisms.  Individuals suffering from ADHD who attempt to follow instructions from a GPS device, in traffic, at night, while either talking on the phone or listening to music are bound to display to a traffic cop difficulties operating a car. 

The typical ADHD sufferer not under the influence of drugs or alcohol sometimes normally drives as follows: making a wide turn, straddling centerline, almost striking an object, weaving, swerving, driving too slowly, too closely, breaking erratically, or drifting into another lane.  They also display slow response to traffic signals, inconsistent operation of a motor vehicle, stopping inappropriately and turning abruptly.  Experienced DUI trial attorneys recognize that these motor vehicle code violations constitute probable cause to initiate a traffic stop.  Trained counsel must now be prepared to have a court understand that such operational deficiencies are due to ADHD and not legal or illegal medications or alcohol intoxication.

            However, operational observations are only one part of the cross-examination job.  Questioning the basis for an officer’s conclusion that a client failed a field sobriety test is the next step.  Here, an ADHD diagnosis is really helpful.  This is because ADHD symptoms include poor sustained attention, distracted ability to listen, impaired impulse control and hyperactivity, excessive anger, aggression and risk-taking.   ADHD patients typically fail to properly pay attention to an officer’s instruction, interrupting them during instruction giving, and commencing the physical examination tests prior to be instructed (because they were not listening or could not listen patiently to the entire instruction).  These behavioral failings easily cause the ADHD suspect to fail a field sobriety test.  As well, the ADHD sufferer’s inability to follow complex physical coordination instructions typically leads to improper turning, standing on the wrong leg, and not counting out loud as instructed.  Presenting as confused and flustered, ADHD individuals always present difficulty in following simple directions given by in investigating officer in a rapid manner, on the side of the road, at night.  Having failed probably all of the field sobriety tests, the officer can now testify of these failures as the basis for his conclusion intoxication or inability to operate a motor vehicle safely.

I view cross examination of any expert as a laser cutting off the legs of a three legged stool, causing the expert’s opinion to fall as the stool falls.  Sufficiently questioning the testifying officer about his familiarity with ADHD mannerism and their overlap with intoxication behavior will give a judge a reasonable explanation of why the officer may have observed what he did, but why such is not an impairment and why such behavior is not a basis to conclude intoxication.  Creating that reasonable doubt as to the basis for the officer’s conclusions, and therefore guilt, will require a trained judge to enter a not guilty verdict. 

Please call me to discuss your impaired driving case and its intersection with your ADHD diagnosis or undiagnosed behavior. 

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