RxP Training can be Profitable in Courtrooms

By James Bradshaw, Senior Editor
June 26, 2011

RxP Training can be Profitable in CourtroomsWashington, D.C. – RxP psychologists can use their pharmacological knowledge to make money – at rates starting at $150 an hour – even in states that do not grant psychologists prescription authority.

Robert M. Julien, M.D., Ph.D., spoke with the voice of experience as he outlined the lucrative field of forensic psychopharmacology for about 90 attendees at the Midwinter Conference of Division 55, the American Society for the Advancement of Pharmacotherapy (ASAP).

“It’s financially rewarding,” Julien said. He said entering the field can be as simple as calling the local public defender’s office and saying, “If you need help in a case involving drugs, give me a call.”

Rates for such an expert witness can run as high as $450 an hour, but Julien said he has not seen fit to charge that much for any of the many courtroom appearances he has made throughout the Pacific Northwest. “The cheapest rate for indigent defense in $150 an hour,” he said.

RxP psychologists with specialized training both in human behavior and psychopharmacology are well qualified to be expert witnesses in cases related to the use of drugs or alcohol, and there are a number of good resource books with detailed information on blackouts caused by alcohol and other drugs, Julien said.

Julien received his Ph.D. in pharmacology from the University of Washington in 1970 and his medical degree from the University of California, Irvine, in 1977, but has no training as a psychologist. He said that is no problem in his courtroom work. “Don’t be afraid of court. Your job is educational.”

Rather than testifying on the psychological status of a defendant, Julien said the job is simply to educate judges and jurors on the effects of drugs, either as therapeutic agents or as substances of abuse. Often, he said, the work involves explaining drug or alcohol “blackouts” as they relate to the legal definition of “intent.”

As a hypothetical non-drug example to explain legal intent or the lack thereof, Julien set up the scenario of a son or daughter taking in an elderly father who suffers from dementia. While the rest of the family is away, an unscrupulous contractor arrives at the house and gets the mentally impaired man to sign a roofing contract for thousands of dollars.

“Are you going to challenge that contract? Of course you are.”

He said he once represented a woman charged with driving while impaired and assaulting a law officer. The woman had taken Ambien before going to bed and at some point during the night got up, went to her car still in night clothes and drove several blocks before crashing into a 7-Eleven store. When a law officer awakened her, she took a swing at him while still in a blackout.

“Ambien is a blackout drug,” Julien said. Some countries, including Australia, require a “black box warning” on Ambien and other brands of the drug zolpidem, but in the United States manufacturers are only required to note that potential side effects include sleepwalking, which can lead to “sleep-driving.”

The legal question on the assault charge, which carried a sentence of up to seven years in prison for a conviction, was whether the woman “intended” to strike the officer under the definition of legal intent.

Julien said his first task was to explain what a blackout is. While in a drug-induced blackout, a person can seemingly function reasonably well: walking, talking and even performing simple tasks, such as reported instances of someone preparing and eating a midnight snack but having no knowledge of it when the drug wears off and consciousness returns. “They may look totally normal.”

During a blackout, he explained, the brain is so impaired that it is unable to process protein to create memory. “No matter what happens, you can never recall it.” Memory of what transpired cannot be restored through hypnosis or any other means because no memory ever truly existed, Julien said.

That raises the question of whether the person “intentionally” took whatever actions transpired. Legal intent is not applicable to some offenses, such as driving while impaired, but proving a criminal act such as assault requires showing that a person intentionally – under the legal definition – took that action. “It involves planning and desire to commit an act,” Julien said.

Once the court is educated on the effects of a blackout, it is up to lawyers to make the case on whether there was legal intent, but in most cases, such as that of the housewife who tried to hit a police officer during an Ambien blackout, the defendant will be found not guilty, Julien said.

He said he presented similar testimony in a case that involved a civil engineer. The man, who had been an upstanding citizen to that point, became depressed when he lost his job and started drinking heavily. In an alcoholic blackout, he went to his bank where he no longer had any funds and told the teller he had a gun and wanted $250, which he promised to repay when he could.

“I don’t make these stories up,” Julien said. “If you start doing this work, you’ll have stories to tell, too.”

In a wrongful death case, he said, a man became drunk and belligerent at home and the police were called. When the officers approached him, the man attempted to defend himself with a butter knife and was shot and killed.

Whether a person is in an alcoholic blackout can be determined by the blood alcohol level, Julien said. Many jurisdictions consider a person drunk who has reached a level of 0.08 percent, meaning ethyl alcohol has reached that level as a percentage by volume of each liter of blood in the system.

The threshold level for an alcoholic blackout is 0.25, he said, adding that all drinkers reaching 0.30 will experience blackouts even if they appear perfectly normal except for some apparent intoxication.

He said even heavy drinkers do not develop a tolerance against blackouts. The higher tolerance of alcohol that some drinkers exhibit is merely an indication that their systems have learned to metabolize alcohol more slowly. While it may take them longer, when they reach 0.30 they will experience blackouts.

Julien said the expert witness’s function is only to present the scientific evidence on blackouts and the questions they raise about legal intent. Parties to court actions may still disagree vigorously on what the outcome of a trial should be, he said.

To illustrate the point, he used the hypothetical example of a college couple who go on a drinking binge. At some point during the outing, the two have sexual intercourse. The next day the young woman, who was in a blackout at the time, realizes the young man has been intimate with her and he is charged with rape, backed by the results of a rape kit test.

The young man contends the intercourse was consensual and that the young woman not only acceded to having sex but initiated much of the intimacy.

“A major intoxicant and date-rape drug is ethyl alcohol,” Julien said.

In the hypothetical example, both participants may be giving an honest account to the best of their knowledge, he said. “Alcohol is disinhibiting,” he pointed out, which could account for the young woman’s actions under the influence even if she might have resisted intimacy were she not intoxicated.

The question at trial is whether the young man is guilty of rape and should serve time in prison and be labeled for life as a sexual predator. “If he’s your son, you would not want this to happen to him. But if you’re her father, you’re going to be angry.”

Julien operates a private practice in anesthesiology at Providence St. Vincent Hospital in Portland, Ore., and regularly conducts workshops on how knowledge of the effects of drugs can be presented as part of a legal defense in courtrooms.

He has held seminars for several state psychological associations, including Wyoming, Oregon, New York, Vermont and Pennsylvania. More information on courses he offers can be found at www.drjulien.com.

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