Believe it or not, each year hundreds of drivers across the United States who receive citations for driving under the influence (commonly known as a “DUI”) claim that the alcohol found in their blood was not the result of consuming an alcoholic beverage. Rather, many of these drivers contend that over-the-counter cough syrup was the culprit for the finding of alcohol in their blood stream, which pushed their blood alcohol content (“BAC”) above the legal limit (Info on Matching the Legal Limit). The fact that cough syrup contains a healthy dosage of alcohol begs the question: Can a driver really receive a DUI citation for drinking cough syrup?
Unfortunately, the short answer is yes. With regard to determining a driver’s blood alcohol content, the laws of all fifty states do not differentiate between intoxication caused by cough syrup versus beer, wine, or hard alcohol. States have unanimously decided that the value of protecting the safety of its citizens by severely penalizing intoxicated drivers trumps any call for leniency or differentiation between types of alcoholic intake.
State DUI Statutes & Cough Syrup Cases
In Virginia, for example, the cough syrup defense holds no merit. Code of Virginia § 18.2-266(iii) states that it is illegal for any person to drive "while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely.” By including the phrase “drug of whatsoever nature”, the legislature clearly intended the statute to cover cough syrup and similar over-the-counter medication. See the Virginia DUI statute
California is similarly unkind. The relevant California statute reads that it is unlawful for a person under the age of 21 years who has a blood-alcohol concentration of 0.01 percent or greater to drive a vehicle and that any such driver is guilty of a violation if the judge finds that the person had consumed an alcoholic beverage and was driving a vehicle with a blood-alcohol concentration of 0.01 percent or greater. See the California DUI statute
In a recent California case, a sixteen year old was stopped and arrested for driving under the influence. The police had found a blood alcohol level of just .022. However, reading the Department of Motor Vehicle statute strictly, the California judge ruled that the suspension of a 16-year old’s license was still valid because cough syrup is a liquid containing alcohol and thus falls within the statutory definition of an alcoholic beverage. The Court rejected the argument that the Legislature intended to penalize underage driving after alcohol consumption only when the beverage was consumed illegally, that is, when it is an alcoholic beverage as defined in the liquor control statutes rather than under the more expansive Vehicle Code definition.
In Utah, the same fate lies for a driver attempting to use the cough syrup defense. Under Utah law, regardless of blood alcohol content, a driver can be cited for a DUI if they are found under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that renders the person incapable of safely operating a vehicle. See the Utah DUI statute
Florida’s Baby DUI Statute
Finally, Florida has enacted a so-called “baby DUI” statute to provide special rules for drivers under the age of 21, the legal drinking age in the state. Adults who are 21 and older may not have a blood alcohol content exceeding 0.08, but persons under the age of 21 can be convicted of DUI with a BAC of only 0.02. Substantial amounts of cough syrup, unfortunately, can cause one’s BAC to exceed .02. See the Florida DUI statute.
Can a DUI Lawyer Help?
In sum, all drivers, but those under 21 especially, must be extremely careful about driving after taking cough syrup. No matter your age, it is wise to consult a DUI attorney, especially if you have a DUI or related charge already on your record. Breathalyzers have been found unreliable in certain circumstances, and experienced DUI attorneys with good relationships with the district attorney may be able to reduce the charge or throw out your case for cause.