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Memorandum

TO: Dan Abrahamson


FROM: 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 methadone
prescribed as part of a long-term methadone maintenance program?

BRIEF ANSWER
No. 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 dose
of methadone should not, under ordinary circumstances, have any difficulty in operating
a vehicle in an appropriate manner. Moreover, the code’s prohibition on driving while
addicted 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 code
requires that the drugs

must have so far affected the nervous system, the brain, or muscles [of the
individual] 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 vehicle
code requires that the operation of a vehicle be impaired to an appreciable degree by the
driver’s 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 be
able 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”).
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 heroin”7 without impairing the normal
functioning 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-term
methadone maintenance “there does not appear to be any socially relevant barrier to their
ability 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 the
driving 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 in
violation of § 23151(a). In People v. De La Torre, a driver’s 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 “extremely
nervous,” 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-term
methadone 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 their
ability 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 State
Office 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 a
narcotic 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”).
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 but
explicitly exempts individuals “participating in a narcotic treatment program.”16 The first
drug listed in the California Health and Safety Code section on authorized controlled
substances for use in replacement therapy is methadone.17 It is therefore not a per se
violation 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 in
order 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 effect
immediately 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 is


not, 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 no
caselaw suggesting that being involved in a traffic accident changes that legal status. The
California Vehicle Code’s 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).
17 Cal 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).