Ohio Drugs For Which There is a “Per Se” Blood / Urine / Breath Limit
The only substances for which there is a blood / urine / breath “limit” under Ohio law are:
- Alcohol
- Amphetamine (examples: Meth, Adderall, Ritalin, Dexedrine, Dextroamphetimine, “Uppers”, Speed)
- Cocaine / Cocaine metabolite
- Heroin / Heroin metabolite
- LSD
- Marijuana / Marijuana metabolite
- Phencyclidine (PCP)
Other prescription drugs (e.g. Xanax, anti-depressants) – although they may cause impairment – do not have a strictly defined blood / urine impairment level under Ohio law.
Defending Against a Prescription Drug OVI
For OVI cases involving prescription drugs that are not outlined above, proving an OVI / DUI in court is a little more complicated.
In an OVI case where the driver was allegedly taking prescription medication, the state must present evidence in each case of a “nexus” or connection between taking the prescription drugs and the driver’s impairment.
In an OVI case involving alcohol, the state just has to prove that your BAC was over 0.08. If that is proven at trial, you will be likely found guilty of a per se OVI as a matter of law. But that standard doesn’t apply in prescription drug cases where there is no BAC or blood level limit.
In those cases, the prosecutor has to prove their case by either :
(1) the testimony of an expert who is familiar with the potential side effects of the medication (in most cases, the trooper is not an expert in medication side effects), or
(2) a friend or family member, who has seen the effect that a particular prescription drug on the driver.
OVI Example: No Connection Between Prescription Drugs and Impairment
This issue recently came up in an Ohio court of appeals case – State v. Hammond, 2016-Ohio-2753.
Here, the trooper was not an expert on the prescription drugs at issue. Likewise, although the driver’s wife said that he regularly took meds for pain, sleeping, cholesterol, and blood pressure, she did not testify that the specific medications found in his system made him sleepy. In fact, she testified that her husband’s medications did not impair his driving.
Thus, the court found that the state failed to establish the required nexus between the driver’s impaired condition and the prescription medications he took. The OVI conviction was vacated (reversed).
Driver Pulled Over for Speeding, Urine Shows Prescription Meds
In this case, a relatively new Ohio State Highway Patrol Trooper stopped a 70 year old driver for speeding. Based on his Advanced Roadside Impaired Driving Enforcement (“ARIDE”) training and ten months of experience, he trooper observed that the driver’s pupils were constricted, so he suspected drug use.
The trooper did not notice any evidence of alcohol use. He then administered four different field-sobriety tests. On the horizontal-gaze nystagmus (HGN / eye) test, the trooper did not notice any clues of impairment.
On the walk-and-turn test, he noticed seven clues of impairment:
(1) he began before being told to begin;
(2) he moved his feet for balance;
(3) he raised his arms for balance;
(4) he did not walk heel-to-toe;
(5) he stepped off the line eight times;
(6) he made an improper turn;
(7) he stopped twice while walking.
On the one-leg-stand test, the trooper noticed four different clues of impairment:
(1) he lost his balance;
(2) he raised his arms for balance;
(3) he swayed; and
(4) he put his foot down.
Based on the field-sobriety tests, the trooper believed the driver was under the influence of “drugs of some kind, not alcohol.”
A urine sample showed the following prescription drugs in his system:
- N-Desmethyldiazepam,
- Oxazepam, and
- Temazepam.
There was no evidence that the trooper was an expert on any of these medications. Nonetheless, in response to leading questions, the trooper testified that the medications impaired the driver’s ability to drive.
The 70 year old driver had a number of significant physical problems, including an artificial ankle, degenerative disc disease, and walks with a cane. He has been disabled for about 25 years, after suffering two strokes. He takes various medications for pain, sleep, cholesterol, and blood pressure.
His wife testified that he has taken these medications for 15 years and they did not impair his daily driving.
Ohio Law: The Prescription Drug “Nexus” Requirement
Where prescription drugs are involved in an OVI case, the state must also present some evidence of how the particular medicine actually affects that person or that the drug generally has the potential to impair a person’s judgment or reflexes.
So, the state must prove a “nexus” between the prescription drug or drugs ingested and the impairment in order to establish an OVI violation (R.C. 4511.19(A)(1)(a)).
If the state just had to prove that you TOOK a prescription drug (without also showing that it caused impairment), anyone taking any type of prescription medication who is impaired for any reason while driving, would be guilty of an OVI — even if the impairment had nothing to do with the prescription drugs.
No Evidence Prescription Drugs Caused Impairment
The purpose of Ohio’s OVI statute is to prohibit impaired driving while under the influence. It is not to criminalize driving while taking a cholesterol or blood pressure medication UNLESS that drug negatively affects driving abilities.
Here, the court relied on the trooper’s testimony in finding that the prescription drugs found in the urine sample impaired his ability to operate a motor vehicle to a noticeable degree.
But there was no evidence qualifying the trooper as an expert familiar with the potential side effects of N-Desmethyldiazepam, Oxazepam, and/or Temazepam.
Nor did the state introduce evidence that the trooper had personal knowledge about how these medications affected that particular driver in the past.
Therefore, the trooper’s testimony did not provide sufficient evidence to support an OMVI conviction.
Further, the driver’s wife testified that based on her observation of her husband for the past 15 years, his medications did not impair his ability to drive. Therefore, her testimony also did not supply sufficient evidence to support the OMVI conviction.
Thus, the state failed to prove that the drugs ingested impaired the driver’s judgment or reflexes. Thus, the state failed to establish the required nexus between the driver’s impaired condition and his ingestion of the prescription medication.
The OVI conviction was reversed.
If you have been charged with an OVI based on prescription medication (“drugged driving”), talk to one of our Columbus OVI attorneys about your options at 614-361-2804.
