Pursuant to Minnesota Statute, Sec. 169A.20, Subd. 1, it is illegal for an individual to drive a motor vehicle with any Schedule I or Schedule II controlled substance or a metabolite in his/her system, even with a valid prescription and even if the person is not impaired in any way. The problem is that many prescription medications are, in fact, listed on Schedule I or II; thus, these laws are unfairly targeting innocent people who are simply following their physicians’ orders.

Drug scheduling is determined by the substance’s potential for physical or psychological abuse, whether it has any currently accepted medical use in the United States, and whether there is any accepted safety under medical supervision. Unfortunately, most prescription painkillers and some cough syrup ingredients are Schedule I and II substances.

Current Law

Pursuant to Minnesota Statute, Sec. 169A.20, Subd. 1, driving while impaired (DWI) occurs when a person who drives, operates, or is in physical control of a motor vehicle has in his/her body any amount of a Schedule I or II controlled substance—or a metabolite—except for marijuana and tetrahydrocannabinols (THC).

Additionally, Minnesota’s implied consent law, 169A.52, Subd. 4(a) requires revocation of a person’s driver’s license for engaging in the above conduct after a drug test demonstrates the presence of such a controlled substance.

Legal Problems

This problem first came into national attention in Pennsylvania where DUI/DWI laws were attacked as specifically targeting innocent people. Even a first offense can mean incarceration, fines, and a suspended driver’s license. Sadly, Minnesota has followed suit with somewhat absurd and troubling statutes.

Granted the state legislature has provided an affirmative defense option for drivers who do, in fact, have a valid prescription; however, many in the legal sphere call this exception nothing more than illusory. Because the burden of proof shifts from the prosecution to the defendant to prove s/he has a valid prescription for the substance in question, these defendants are, therefore, forced to take the stand in their own defense. Additionally, this affirmative defense is only applicable in criminal cases. Minnesota’s implied consent law fails to recognize this defense in civil and administrative driver’s license suspension cases.

In fact, retired Minnesota Attorney General’s Office lawyer Joel Watne—a 37-year veteran and staunch supporter of increasingly aggressive DWI/DUI laws which he helped to draft—was faced with this issue while taking a legally prescribed narcotic following surgery. When asked how he was going to ensure that he wasn’t breaking the law himself, Watne stated that he would stop taking the medicine before he drove. Whereas this, at first glance, makes sense, the problem is knowing how long such a substance—or its metabolite(s)—remains in a person’s blood or urine. Some drugs can still be detectable days after the last dose. Only a chemist with an intimate knowledge of substances’ half-lives can even remotely figure that out.


Imagine the hundreds, if not thousands, of individuals who are driving while taking a prescription for a Schedule I or II drug. Imagine an accident where the driver appears a bit dazed and a blood or urine test yields the presence of a Schedule I or II drug or a metabolite. Whereas this hypothetical driver may successfully assert the affirmative defense of having a legitimate prescription in a potential criminal action, imagine this same person losing his/her driver’s license under Minnesota’s civil implied consent law even though s/he did not intentionally do anything wrong.

Thus, in order to ensure that innocent people are not needlessly burdened by the statute as it is, current law requires some overhaul to address these issues.