Given the increasing prevalence of prescription medication use, the number of “drugged driving” cases are on the rise. These cases — although charged under the same Ohio statute as driving under the influence of alcohol (OVI) — can involve different requirements of proof in court.
The FDA has approved more than 1000 prescription drugs (which are “drugs of abuse” under Ohio law), all of which may have any number of different side effects. Not all side effects involve the impairment of judgment or reflexes.
Ohio’s DUI (OVI) statute is meant to prohibit impaired driving while under the influence. It is not intended to criminalize driving a car while taking a cholesterol, blood pressure, anti-narcoleptic or ADHD medication unless that drug negatively influences someone’s ability to drive.
One recent Ohio Court of Appeals case discusses what exactly needs to be proven in an OVI case involving prescription meds, discussed in detail below.
THE ACCIDENT & OVI ARREST
Minor Traffic Accident
Around 4:30 p.m., the defendant rear-ended another vehicle that was stopped at a traffic light. The defendant was not driving fast and there was no damage to the other vehicle.
When the two drivers got out of their cars to assess the damage, the other driver noticed that the defendant’s speech was “very slurred and pretty much incomprehensible” and that he did not make eye contact. He also “fumbled” with his wallet and dropped all of his cards on the street while looking for his insurance information.
There was no smell of an alcoholic beverage nor were there any open containers or other drugs in the defendant’s truck. The other driver did notice that he had a small child in the back seat, and she was concerned about his ability to drive. She called the police.
The Police Arrive & Defendant Admits to Taking Pain Medication
When the police arrived, they found the defendant in his car with “both hands on the steering wheel kind of slumped forward staring ahead.” One officer noticed a burnt smell. The defendant had tried to light a cigarette and it singed the side of his hair. His car was still running.
When the officer asked him to turn off the car, the defendant “couldn’t figure out how to put it back into park,” so the officer did it for him.
The officer asked him to step out of the truck. When he got out, he slid out of the driver’s seat and was unsteady. The officer took the defendant to the front of his cruiser. When asked, the defendant said he had not been drinking, but stated that he was on pain medication. He said he had back and neck problems necessitating pain meds.
The defendant had slurred speech, seemed to have difficulty understanding questions, and gave incoherent answers.
Field Sobriety Tests
The officer decided to administer field sobriety tests: the horizontal gaze nystagmus (HGN) test, the walk and turn test, and the one-leg stand test.
On the HGN, the officer noticed a 45 degree angle of nystagmus and slight jerking in the defendant’s eyes during the HGN test, which indicated impairment. Richardson also had difficulty paying attention.
On the walk and turn test, the defendant exhibited seven out of eight “clues” indicating possible impairment.
On the one leg stand, the officer marked three out of a possible four clues for impairment.
The officer concluded that the defendant was under the influence of “some type of possibly narcotics,” and arrested him. When asked to submit to a blood test, the defendant refused. No breath, blood or urine tests were performed.
He was charged with OVI and child endangering. (R.C. 2919.22(C)(1) prohibits operating a vehicle under the influence with a child in the vehicle).
THE TRIAL TESTIMONY
Defense: Driver was Suffering from Hydrocodone Withdrawal
Defendant’s Testimony: I Had No Side Effects from Taking Pain Meds
The defendant testified at trial that he had multiple broken bones (legs, hip, elbow) and had a prescription for hydrocodone acetaminophen. He was prescribed three pills per day. Two days before the accident, he ran out of medication. Thus, he believed he was suffering from hydrocodone withdrawal at the time of the accident. He testified that he was trying to go to the hospital at the time of the accident.
When asked how pain medications affected him, the defendant said “By this point in time, I had been taking the painkiller medication for so long they no longer had any real side effects, you know, that I felt any kind of drowsiness, dizziness, feelings of euphoria, if you will, anything of that nature that would cloud your judgment. Long ago, I stopped having these side effects. The narcotic painkiller basically just did its job and numbed the pain.”
Defense counsel asked the defendant if he suffered from confusion, disorientation, or problems with balancing, walking, or focus while on hydrocodone; Richardson responded that he did not.
He stated, “[B]y this time, I had been taking narcotic painkillers for, every day for two-and-a-half years so I felt no side effects from those, whatsoever.”
Defendant’s Testimony: I Had Symptoms of Hydrocodone Withdrawal
During his testimony, the defendant described his symptoms of hydrocodone withdrawal. He stated that he had insomnia and had not slept for two nights, he was disoriented, fatigued, weak, sweating, had cold chills, vomiting, and diarrhea. The defendant testified that he suffered from all of those symptoms at the time of the accident.
The defendant further testified that he had suffered from withdrawal one prior time in 2010, and he had similar symptoms.
Expert Testimony: Possible that Defendant was Suffering from Opiate Withdrawal
Also at trial, the defense presented the testimony of Dr. Charles Russell, an expert in chemical dependency. He testified that the defendant was opiate tolerant, that he was taking medication with 325 mg of acetaminophen and 10 mg of hydrocodone, three times a day.
He described the symptoms of opiate withdrawal, and stated that the symptoms the defendant described were consistent with withdrawal. Dr. Russell concluded that “there’s a decent possibility that he was withdrawing from opiates, but I wouldn’t call that a reasonable degree of medical certainty.”
On cross-examination, the State asked Dr. Russell several questions related to whether Richardson’s medical records provided an explanation for Richardson’s poor performance on the field sobriety tests. Richardson’s medical records generally did not indicate that he suffered from conditions that would affect his performance on the tests.
Dr. Russell was not asked about the actual or potential effects of 10 mg of hydrocodone.
At trial, court found Richardson guilty of both offenses.
STATE’S BURDEN TO PROVE AN OVI BASED ON PRESCRIPTION MEDICATION
In order to prove an OVI based on prescription medication, the State has to do more than just show that the defendant took the medication and showed signs of impairment. (State v. May, 2d Dist. Montgomery No. 25359, 2014-Ohio-1542).
In many cases, whether the prescription meds actually influence the ability to drive can only be proved by direct testimony linking the influence of the drug to the driving.
This could be established through:
- the testimony of an expert who is familiar with the potential side effects of the medication, or
- a friend or family member who witnessed the effect of the particular drug on the defendant-driver.
Thus, in order to prove an OVI based on prescription medication, the State must also present some evidence as to:
- how the particular medication actually affects the defendant, and/or
- that the particular medication has the potential to impair a person’s judgment or reflexes.
Without that information, the jury has no way evaluate whether the defendant’s impairment was due to his or her being under the influence of that medication.
“PER SE” OVI – THESE RULES DO NOT APPLY WHERE DEFENDANT TESTS OVER THE LIMIT
These proof requirement rules do not apply in cases where there was a chemical test and the defendant tests over the “per se” limit set forth in the statute. For example, the per se limit for alcohol is .08 BAC.
Examples of these “per se” limits are for drugs are:
- Amphetamine: 500 ng/ML urine / 100 ng/ML in blood
- Cocaine: 150 ng/ML urine / 50 ng/ML in blood
- Marijuana: 10 ng/ML urine / 2 ng/ML in blood
These per se limits are based on the legislature’s implicit determinations that specific concentrations of specific drugs negatively influence driving.
DEFENDANT WAS IMPAIRED BUT NO EVIDENCE AT TRIAL LINKED IMPAIRMENT TO PAIN MEDICATION
Here, the officer testified that the defendant was impaired. He failed the field sobriety tests, was slow to respond to questions, was inattentive, and needed assistance walking. When asked what was wrong with him, the defendant said that he was “exhausted.”
The court, then, was satisfied that the State proved impairment.
However, there was no evidence in the State’s case as to what particular drug, medicine, or substance he had taken, when it was taken, or what its potential effects were.
Although there was substantial evidence of impairment, there was no evidence linking that impairment to any “drug of abuse.”
Because the defendant admitted to taking painkillers, the State could have introduced:
- expert testimony on the effect of painkillers or
- lay testimony of people who had observed the effects on the defendant.
Further, the State could have gotten a warrant to get a blood sample after he refused. But they did not.
Without any evidence about the effects of the painkiller on the defendant specifically or the possible effects on people generally, a Crim.R. 29 motion for acquittal should have sustained by the trial court.
CONVICTION OVERTURNED: INSUFFICIENT EVIDENCE TO ESTABLISH THAT IMPAIRMENT WAS CAUSED BY TAKING PAIN MEDICATION
Considering all of the evidence presented at trial, there was insufficient evidence to establish that Richardson’s impairment was caused by the ingestion of hydrocodone/acetaminophen.
There was substantial evidence that Richardson was driving while impaired and there was conflicting evidence as to whether Richardson’s poor performance on the field sobriety tests could be explained by opiate withdrawal.
But there was no testimony that Richardson’s medication caused him to have any side effects (he denied that they did), and there was no evidence as to what those side effects typically might be.
There was no expert testimony that hydrocodone could impair a person’s judgment or reflexes. The defendant asserted that his impairment could have been caused by opiate withdrawal.
Without any evidence that the defendant’s medication could have caused the impairment he displayed, there was insufficient evidence to convict him.
For full text of the case, see State v. Richardson, 2015-Ohio-757.
