With the rising use of prescription medications in Ohio, more and more of our clients are charged with OVI while under the influence of prescription medications.
Under Ohio law, though, it is not a crime by itself to take drive and prescription meds. Rather, it is a crime to drive while under the influence of prescription meds that affect the driver’s judgment or reflexes.
To prove that a driver is guilty of OVI under the influence of prescription meds, the prosecution must show:
(1) that the driver was impaired,
(2) that he or she was taking prescription meds, AND
(3) that the particular prescription meds he or she was taking can negatively affect a driver’s judgement, reflexes or ability to drive.
Discussed in below is a more recent case from his year – Chillicothe v. Lunsford, 2015-Ohio-4779 – involving a CDL driver charged with OVI while taking the prescription meds Xanax and Lortab.
In this case, t
he prosecution proved the driver was impaired. And proved that he was taking medications. But, they failed to establish with an expert or lay witness that Xanax or Lortab actually impairs a driver’s judgement or reflexes.
As a result, the driver was acquitted of the OVI charge.
CDL Driver Charged with Marked Lanes, OVI While in Semi-Truck
Here, the CDL driver was charged with OVI under the influence of drugs, OVI while possessing a CDL, and marked lanes.
At trial the prosecutor presented evidence of erratic driving and the defendant’s admission that he had taken the prescription drugs Lortab and Xanax, either the evening before or the following morning prior to operating his semi-truck.
He was found guilty at trial of marked lanes. But the court granted his Crim.R. 29(A) motion for an acquittal (finding him not guilty) on the OVI charges.
The court found that the state failed to provide sufficient evidence that there was a nexus between the driver’s ingestion of prescription drugs and his impaired driving.
Prosecution Must Prove that the Prescription Medication Causes Impairment to Establish an OVI Violation in Ohio
The court in this case based its decision on the recent ruling in State v. Husted, 2014-Ohio- 4978, 23 N.E.3d 253 (4th Dist.). We discuss the Husted case in detail here.
The gist of Husted was that where there is evidence that the defendant has consumed drugs, there must be some evidence that the drug consumed “has the potential to impair a person’s judgment or reflexes.” Husted at ¶ 21.
Other cases where the court dismissed an OVI or found a driver not guilty of OVI due to the state’s failure to provide evidence about which drug the driver took and/or its effects include:
- State v. Richardson, 2015-Ohio-757, 29 N.E.3d 354 (2nd Dist.). Here, the driver admitted to taking pain medication containing hydrocodone and acetaminophen, but the state failed to present evidence of what the possible side effects of the pain medication typically might be.
- State v. May, 2d Dist. Montgomery No. 25359, 2014-Ohio-1542, ¶ 48. Here, the driver admitted to taking the prescription drug Cymbalta, but state offered no evidence of the potential effects Cymbalta has on judgment or reflexes.
It is Not Enough to Show Only that the Driver Consumed a “Controlled Substance,” or “Dangerous Drug,” or a Prescription Medication
Rather, the state must show that the drug or prescription medication consumed is one “that can result in impairment of judgment or reflexes.” See, R.C. 4506.01(M).
If the rule was that all the state had to prove was that the defendant had taken prescription drugs, then someone taking any type of prescription medication who is impaired while driving, would be guilty of OVI — whether or not the prescription drug caused the impairment.
When a prosecution under R.C. 4511.19(A)(1)(a) is based on driving under the influence of prescription medication, the State must do more than simply present evidence that the defendant has taken the medication and shows signs of impairment.
The United States FDA has approved more than a thousand 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.
State Must Prove that the Prescription Medication Causes Impaired Driving
In many situations, especially those involving prescription drugs, this can only be proved by direct testimony linking the influence of the drug to the driving.
This could be established through the testimony:
(1) an expert who is familiar with the potential side effects of the medication, or
(2) a layperson (such as a friend or family member) who witnessed the effect of the particular drug on the defendant-driver. State v. May, at ¶ 47.
Here, the Prosecution Proved that the Driver Was Impaired
Here, the state presented the testimony of two witnesses:
(1) the trooper who pulled over the driver (who said the driver failed the field sobriety tests), and
(2) the trooper who conducted an investigation at the post (who said a breathalyzer showed no alcohol in the driver’s system but that the driver had droopy eyelids and slurred speech).
In fact the driver admitted that he was about a “five or a six” on the scale of impairment, probably should not have been driving that day and apologized.
Thus, the state presented ample evidence that the defendant was driving while impaired.
The Prosecution Proved that the Driver Had Taken Prescription Medication
The state also provided evidence that the driver had taken prescription drugs, though it was unclear when he took them.
The driver said he had prescriptions for medications, including Xanax and Lortab and that his doctor said the only medication he should not drive after taking was Xanax.
The driver said that the Xanax was prescribed for panic attacks and that he would not take Xanax and drive. He said he had taken his Xanax mediation the previous evening at approximately 11 p.m. before going to bed — 13 hours before the traffic stop.
The driver also admitted to snorting two Lortab pills the night before driving, and possibly that morning. Both Lortab and Xanax are scheduled substances.
The driver said he snorts his medication at night because he has a difficult time with anxiety and depression and needs the mediation to help him sleep.
No Evidence at Trial that Lortab or Xanax Caused the Impaired Driving
The trooper testified that Lortab was a schedule three drug and Xanax was a central nervous system depressant drug and a schedule four drug.
However, he did not testify about what was in Lortab or Xanax or whether either of the drugs had the potential to impair judgment or reflexes.
The prosecution did not offer any evidence of”
- what types of substances Xanax and Lortab contain,
- the strength level of either of the prescriptions,
- the quantity of Xanax the driver may have ingested the evening before the stop, or
- any evidence about the effects of these medications on judgment or reflexes.
The only testimony about either of the medication effects came the driver. mWhen arrested, the driver said he was prescribed Xanax after a severe anxiety attack and that his doctor told him not to take it and drive.
And the driver told the trooper that he did not take Xanax before driving, but instead had taken it the evening before.
These statements about Xanax provide evidence of the type of medical condition Xanax is used to treat, it provides no evidence of the side effects Xanax has on a person or whether it typically impairs a person’s judgment or reflexes for the period of time at issue in the case.
The state could have – but did not – introduce:
- Expert testimony to identify the substances contained in Xanax or Lortab and to testify about their effect on judgment and reflexes, or
- Testimony from a lay witness who had personal knowledge about how the medication has affected the defendant in the past.
Also, the troopers could have asked him to provide a blood sample or, if he refused, sought a search warrant to obtain a blood sample. But it did not.
Thus, the state failed to establish the required nexus between the driver’s impaired state and his ingestion of the prescription medication. The driver was acquitted (found not guilty) as a result.
Nexus Requirement Applies Only to Prescription Medication Cases – Not to Alcohol
This rule only applies to prescription drug cases. The law considers it common knowledge that alcohol causes impairment. In cases involving alcohol, then, this nexus does not have to established.
Unlike alcohol, “the various physiological effects of different medications [are] outside the common knowledge of most jurors and many trial judges” or, in this case, the arresting officer.
When prosecuting a charge of driving under the influence of a drug of abuse, the state must present some evidence of how the particular medication actually affects the defendant or that the particular medication has the potential to impair a person’s judgment or reflexes.
If you have been charged with OVI under the influence of prescription medications, talk to one of our Ohio OVI attorneys about the facts of your case.
(614) 361-2804 – Free Consultation with our OVI attorneys.