SSB 1150 (LSB 1413XC (5) 85)

SENATE FILE _____

BY  (PROPOSED COMMITTEE ON JUDICIARY BILL BY CHAIRPERSON HOGG)

A BILL FOR

An Act concerning prescription drug or controlled substance medication defenses in operating-while-intoxicated cases.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 321J.2, subsection 11, Code 2013, is amended to read as follows:
   11.
  a.  This section does not apply to a person operating a motor vehicle while under the influence of a drug if the substance
 
When charged with a violation of subsection 1, paragraph “a”, a person who has consented to testing in accordance with section 321J.6 may assert, as an affirmative defense, that the drug involved was prescribed for the person and was taken under the prescription and in accordance with the directions of a medical practitioner as defined in chapter 155A or if the substance
 
drug was dispensed by a pharmacist without a prescription pursuant to the rules of the board of pharmacy, if there is no evidence of the consumption of alcohol and
 
there is evidence the medical practitioner or pharmacist had not directed
 
affirmatively permitted the person to refrain from operating
 
operate a motor vehicle.
   b.  When charged with a violation of subsection 1, paragraph “c”, a person may assert, as an affirmative defense, that the controlled substance present in the person’s blood or urine was prescribed or dispensed for the person and was taken in accordance with the directions of a practitioner and the labeling directions of the pharmacy, as that person and place of business are defined in section 155A.3.
   c.
  (1)  A person asserting an affirmative defense pursuant to this subsection shall provide notice to the state not later than forty days after arraignment. At the time notice is provided, the person shall provide a list of witnesses and shall allow the state to inspect and copy any records or statements upon which the witnesses will rely in testifying. 
   (2)  Failure to comply with the requirements of this lettered paragraph “c” bars introduction of any evidence of impairment caused by a prescription drug or any evidence of the presence of a controlled substance in a prescribed drug, except the testimony of the person, without leave of the court for good cause shown.

   d.  A person asserting an affirmative defense directly relating to the person’s prescription or prescriptions waives all of the following:
   (1)  The confidentiality privilege pursuant to section 622.10.
   (2)  Any privilege or nondisclosure requirement under state or federal privacy laws.
EXPLANATION
   This bill relates to prescription drug or controlled substance medication defenses in operating-while-intoxicated cases.
   Under current law, a person’s use of a valid drug prescription taken in accordance with the directions of a medical practitioner or pharmacist is a defense to an operating-while-intoxicated (OWI) charge if there is no evidence of alcohol consumption and the medical practitioner or pharmacist did not direct the person to refrain from operating a motor vehicle. The bill amends this law to provide that a person who is charged with an OWI violation while under the influence of an alcoholic beverage or other drug or a combination of both who has consented to testing in accordance with Code section 321J.6 may assert, as an affirmative defense, that the drug involved was prescribed or dispensed for the person and was taken in accordance with the directions of a practitioner and the labeling directions of the pharmacy, if there is no evidence of the consumption of alcohol and there is evidence the prescriber affirmatively permitted the person to operate a motor vehicle.
   Current law also provides that a person charged with an OWI offense based upon the presence of a controlled substance in the person’s blood or urine may assert, as an affirmative defense, that the controlled substance was prescribed or dispensed for the person and was taken in accordance with the directions of a practitioner and the labeling directions of the pharmacy. 
   The bill provides that a person asserting an affirmative prescription drug defense is required to provide notice to the state not later than 40 days after arraignment. At the time notice is provided, the person is required to provide a list of witnesses and shall allow the state to inspect and copy any records or statements upon which the witnesses will rely in testifying. Failure to comply with these requirements bars introduction of any evidence of impairment caused by a prescription drug or any evidence of the presence of a controlled substance in a prescribed drug, except the testimony of the person, without leave of the court for good cause shown.
   The bill provides that a person asserting an affirmative defense directly relating to the person’s prescription or prescriptions waives the confidentiality privilege pursuant to Code section 622.10 (confidential professional communications) and any privilege or nondisclosure requirement under state or federal privacy laws.