Ohio Supreme Court holds that, "When the effects of a drug are sufficiently well known . . . expert testimony linking ingestion of the drug with indicia of impairment is unnecessary to convict of an OVI."

State v. Richardson, Slip Opinion No. 2016-Ohio-8448

https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-8448.pdf

December 29, 2016

Richardson was charged with an OVI and other crimes after he was involved in a traffic accident. The police officer believed he observed signs of impairment and Richardson acknowledged that he had taken pain medication. However, during trial it was revealed that Richardson may have been referring to either Hydrocordone or Advil that he had been prescribed. In fact, he testified that he had last taken Hydrocodone about 48 hours prior to the incident and may have been experiencing withdraw symptoms. Although the State presented no expert witnesses to link the Hydrocodone with any observed impairment, an expert doctor for Richardson testified that, "Richardson's behavior at the time of the accident was consistent with the effects of withdrawal from an opiate such as hydrocodone and was inconsistent with being under the influence of an opiate."

After being convicted, Richardson appealed and the Second District granted his appeal, finding that the State had failed to present evidence to connect Richardson's use of hydrocodone with his impairment.

The Ohio Supreme Court's dissenting opinion reviewed what the law had been regarding drugs of abuse, which include, "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."

The essence of R.C. 4511.19(A)(1)(a) is to prohibit impaired driving while under the influence. It is certainly not intended to criminalize the operation of a vehicle by a person taking a cholesterol or blood pressure medication, let alone an anti-narcoleptic or ADHD prescription, unless that drug negatively influences the defendant's driving abilities. And 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 of an expert who is familiar with the potential side effects of the medication, or perhaps of a layperson (such as a friend or family member) who witnessed the effect of the particular drug on the defendant-driver.

The Majority Opinion of the Ohio Supreme Court disagreed, however. It held that, "When the effects of a drug are sufficiently well known—as they are with hydrocodone—expert testimony linking ingestion of the drug with indicia of impairment is unnecessary." Thus, the police offer's lay testimony was sufficient in this case.

Justice O'Neill filed a strong dissent, joined by Justice Pfeifer:

We are violating 200 years of jurisprudence by permitting a lay person to give an expert opinion without qualification. Surely the responding officer was qualified to testify as to what he saw. But under no circumstances was he qualified to testify as to (1) the pharmacology of hydrocodone or (2) how that drug affected this defendant on that day. In an OVI case involving alcohol, would this majority affirm an OVI conviction based on a responding officer's testimony that "well, he looked like he was over the limit to me" based only on behavior observed by the officer? No.