Muddling The Second District’s Requirement For Expert Or Lay Testimony On Driver’s Impairment For Conviction Under R.C. 4511.19.

This article is from guest writer Tammy Chavez.  Tammy is a Third Year Law Student at the University of Dayton and is a current Extern at Holzfaster, Cecil, McKnight & Mues.  

“When the effects of a drug are sufficiently well known. . . expert testimony linking ingestion of the drug with indicia of impairment is unnecessary.”

What is “sufficiently well known”?

In State v. May, 2014-Ohio-1542, the Second District set forth a key requirement to establish a violation of R.C. 4511.19(A)(1)(a). Under R.C. 4511.19(A)(1)(a), “[n]o person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation… [t]he person is under the influence of alcohol, a drug of abuse, or a combination of them.” R.C. 4506.01 defines drug of abuse as “any controlled substance, dangerous drug. . ., or over-the-counter medication that, when taken in quantities exceeding the recommended dosage, can result in impairment of judgment or reflexes.”

The Second district recognized the “essence of R.C. 4511.19(A)(1)(a) is to prohibit impaired driving under the influence” and not to “criminalize the operation of a vehicle by a person taking cholesterol or blood pressure medication, let alone an anti-narcoleptic or ADHD prescription, unless that drug negatively influence’s the defendant’s driving abilities.”

Therefore, in order to be convicted under R.C. 4511.19(A)(1)(a), the State must prove that the prescription drug negatively influenced a person’s driving abilities, not simply that the person was prescribed or consumed the drugs.

The Second District acknowledged that in many situations involving prescription drugs, the only way to prove that the prescription drug negatively influenced a person’s driving abilities, is through testimony by an expert “who is familiar with the potential side effects of the medication” or a layperson, such as a friend or family member, who witnessed the effect of the particular drug on the driver. Without this information, the jury does not have means to evaluate whether a person’s apparent impairment was due to his or her being under the influence of that medication.

In sum, the Second District in State v. May, concluded that “in order to establish a violation of R.C. 4511.19(A)(1)(a) based on medication, the State must also present some evidence (1) of how the particular medication actually affects the defendant, and/or (2) that the particular medication has the potential to impair a person’s judgment or reflexes.”

Citing to State v. May, the Second District Court of Appeals reversed Clinton Richardson’s conviction for operating a vehicle while under the influence in State v. Richardson, 2015-Ohio-757. In 2012, Mr. Richardson was involved in a car accident. Although there were no injuries, the police were called due to Mr. Richardson’s “impaired” condition. Mr. Richardson stated that two days before the accident he ran out of medication—hydrocodone (a “painkiller”) and was thus suffering from withdrawal at the time of the accident. Mr. Richardson testified that he had insomnia, was disoriented, fatigued, weak, sweating, had cold chills, vomiting, and diarrhea. At trial, a medical expert testified that there was a decent possibility that Mr. Richardson was withdrawing from opiates based on Mr. Richardson’s symptoms, but he was not certain.

The Second District Court of Appeals noted that the requirement previously set forth in State v. May had not been satisfied, and vacated the trial court’s judgment convicting Mr. Richardson. During trial, the State did not provide testimony that Mr. Richardson’s medication caused him to have any side effects, and there was no evidence as to what those side effects typically might be. In addition, the State did not present expert testimony that hydrocodone could in fact impair a person’s judgment or reflexes. As a result, there was an extreme level of uncertainty, does hydrocodone cause impairment? Was Mr. Richardson in fact driving under the influence, or was he simply and unfortunately, experiencing withdrawals from hydrocodone? The Second District Court of Appeals reasoned that the State should have provided testimony (expert or lay person) in accordance with State v. May.

In 2016, the Supreme Court of Ohio reversed the Second District Court of Appeals decision in 2016-Ohio-8448. Although, the Ohio Supreme Court did not overturn State v. May’s requirement of expert or lay person’s testimony, it adopted a vague standard for overriding the requirement. The Court stated, “[w]hen the effects of a drug are sufficiently well known. . . expert testimony linking ingestion of the drug with indicia of impairment is unnecessary.” The question is, what is “sufficiently well known”?

In my opinion, the Court’s decision to adopt a standard overriding the State v. May’s requirement was to alleviate the State’s burden (and cost) of presenting additional witnesses. However, the Court’s purpose is refuted by the standard’s vagueness. This standard leaves the State in a bind, the State has to guess how a judge or jury might interpret “sufficiently well known.” When does knowledge of the effects of a drug become “sufficiently well known”? And sufficiently well known to whom—to police officers? To the public? The State is left with a risky decision.

The extreme level of uncertainty and its implications, demonstrates the importance of following State v. May. Mr. Richardson’s conviction carried a one-year prison sentence. That is to say, one year without a fundamental right—freedom. Overriding a necessary requirement for a standard that only muddles the State’s obligations certainly does not seem like the right standard to strip a person from their right to freedom.

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