In a recent Ohio case, the defendant was charged with physical control.  She was found asleep at the wheel of a gas station. There was no odor of marijuana or other drugs.  But the officer said the driver had very slurred speech, red, bloodshot eyes, was very unsteady on her feet, didn’t know what time it was, and had a hard time figuring out where she was.  

She refused all field sobriety tests and a urine test.  The police could have gotten a subpoena for a blood test, but they did not.  The police also found a cut off straw in her lap at the wheel, which the officer assumed she had used to snort something. However, the police never had the straw tested for residue.

Based on these facts, she was charged with physical control. 

The prosecution stipulated that the driver was not drunk as there was no odor of alcohol. But they argued that she was under the influence of drugs.  

The case proceeded to trial.  However, at the end of the case, the prosecutor never offered evidence that the driver was impaired because of a “drug of abuse” as that is defined in the Ohio statute.  In fact, there was no evidence about what specific drug she had consumed.

Therefore, her conviction was overturned by the appeals court and her physical control charge was dismissed.

DRIVER FOUND ASLEEP AT THE WHEEL 

Around 12:45 a.m., an officer was dispatched to a gas station/convenience store to check on someone parked in an SUV in front of the store.  When the officer approached the SUV, he saw a woman sitting in the driver’s seat who was “nodding off” and “not quite awake.”

No one else was in the car, and the keys were on the front passenger seat within her reach.  When the officer got her attention, she said that she needed to check on her child in the passenger seat, but there was no child in the car.

The officer asked her what time it was, and she said that it was 6:00 P.M. even though it was actually almost 1:00 a.m.  After a delay, she was able to tell him she was at the gas station.

He asked her to step out of the vehicle.  When she stepped out, a small cut-off straw fell onto her seat from her lap.  That raised suspicion and he advised her of her Miranda rights before continuing to question her.

He asked her whether she had been snorting any drugs.  She said that she had.  However, she did not say what type of drug she had consumed and only specified that it was not methamphetamine or cocaine.

She refused to take field sobriety tests or a urine test.  Once at the station, she passed out in a cell. 

PHYSICAL CONTROL CHARGE

She was charged with physical control in violation of R.C. 4511.194, a first degree misdemeanor.

The Ohio physical control statute states:

“[n]o person shall be in physical control of a vehicle * * * if at the time of the physical control, * * * [t]he person is under the influence of alcohol, a drug of abuse, or a combination of them.”

The defendant did not dispute that she was in physical control of a vehicle.  She was in the driver’s seat with access to the keys.

Rather, she argued that the state failed to present sufficient evidence to establish that at the time of her physical control of the vehicle, she was “under the influence of * * * a drug of abuse.” R.C. 4511.194(B)(1).

WHAT IS A “DRUG OF ABUSE”?

Under the Ohio statute, “drug of abuse” means “any controlled substance,  dangerous drug as defined in section 4729.01 of the Revised Code, or over-the-counter medication that, when taken in quantities exceeding the recommended dosage, can result in impairment of judgment or reflexes.”

Under R.C. 4729.01(F), a “[d]angerous  drug” means:

(1) Any drug to which either of the following applies:

(a) Under the “Federal Food, Drug, and Cosmetic Act,” the drug must have label saying “Caution: Federal law prohibits dispensing without  prescription” or “Caution: Federal law restricts this drug to use by or on the  order of a licensed veterinarian” or any similar restrictive statement, or the  drug may be dispensed only upon a prescription;

(b) The drug may be dispensed only upon a prescription.

(2) Any drug that contains a schedule V controlled substance;

(3) Any drug intended for administration by injection into the human body other than through a natural orifice of the human body.

PROSECUTION MUST SHOW MORE THAN JUST IMPAIRMENT – THEY MUST SHOW THAT THE DRIVER WAS ACTUALLY UNDER THE INFLUENCE OF DRUGS

Where the police believe that a driver is under the influence of drugs, in order to prove an OVI, the state must prove not just impairment, but must also show “a nexus between the defendant’s impaired condition and any type of drug abuse.”

Where there is no physical evidence like a blood test to determine the presence and amount of a drug, courts have to rely on circumstantial evidence.  Depending on the facts, that may be insufficient to establish guilt beyond a reasonable doubt.

Under Ohio law, in a prosecution for OVI or physical control while under the influence of drugs of abuse, the prosecution must show that the defendant, even though impaired in some manner, was in fact under the influence of a drug of abuse.

Ohio Driving Under the Influence Law, Section 13:21 (2013) explains that this might occur in a case where the defendant refuses chemical tests and the defendant has not admitted to taking any drug of abuse.

NO EVIDENCE PRESENTED AS TO WHAT DRUG DRIVER HAD TAKEN OR WHETHER THAT DRUG IS A “DRUG OF ABUSE” UNDER THE OHIO STATUTE

Here, the state introduced no direct evidence that the defendant had taken any drug of abuse as defined in the statute. Although there was a cut-off straw, there was no evidence of what drug she had snorted or whether the drug constituted a drug of abuse.

The police could have had the straw sent for testing, but did not.  Likewise, the state could have obtained a search warrant to obtain a blood test.  Again, it did not.  Nor was there evidence how the unspecified drug actually affected the defendant and how it impaired her judgement or reflexes.

Nor was there circumstantial evidence from which a jury could reasonably find that she had consumed a drug of abuse. For example,  a strong odor of burnt marijuana from the vehicle and the defendant, an admission of consumption of prescription methadone, or empty prescription bottles that had been filled the same day that the defendant had been stopped.

There was just no evidence—direct or circumstantial—about what drug was taken.

Under these circumstances, there was insufficient evidence to establish that the defendant was “under the influence of * * * a drug of abuse” at the time that she was in physical control of the vehicle.

Thus, her conviction was vacated and the physical control charge dismissed.

State v. Husted, 2014-Ohio-4978.

TALK TO AN ATTORNEY ABOUT YOUR PHYSICAL CONTROL CHARGE

If you have been charged with physical control in Ohio, talk to an attorney about your options.  The state must prove every element of the offense: (1) that you were in physical control of a vehicle, (2) that you were under the influence of alcohol or of a drug specified in the statute.

If the state cannot or does not prove each of these elements, your case could be reduced or dismissed.   

 

 

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