OVI Convictions Up in Smoke – How Litigating Driving Under the Influence of Drugs Cases Differs from Litigating Driving Under the Influence of Alcohol Cases

Most people are familiar with the National Highway Traffic Safety Administration (NHTSA)’s “Drive Sober or Get Pulled Over” campaign. Throughout the years, a lot of advertisement money from various organizations has been used to educate and persuade people about the dangers of “drinking and driving.” However, little attention has been paid to the ever-increasing incidents of drivers taking to the road while under the influence of a drug.

While driving under the influence of alcohol and driving under the influence of a drug or drugs are both criminalized under Ohio Revised Code section 4511.19 and while the elements of the respective crimes are the same, investigation and prosecution of a driving under the influence of alcohol case can be vastly different from investigation and prosecution of a driving under the influence of a drug or drugs case.

When an officer suspects a driver of being under the influence of alcohol, he or she can look for very specific clues, the most telling of which are an odor of alcoholic beverage on or around the driver’s person, or an admission by the driver that he or she consumed alcohol recently. Most officers, and lay people who may end up on a jury, are familiar with the scent of alcoholic beverage, can likely associate certain behaviors with intoxication by alcohol, and are aware of the general time frame in which alcohol has an effect after consumption.

But what happens when an officer pulls over a driver, and the driver acts very strangely, or even erratically, but there is no sign that alcohol is consumed, there are no drugs in sight, and the driver does not admit to having consumed any particular substance? If a blood or urine test is obtained, this will frequently answer the question of what substance has been used, and in what quantity. However, what happens when the driver refuses a test, a test is unavailable, or results are lost in the mail?

Many of Ohio’s appellate courts have held that speculation as to which drug a driver may be under the influence of is not sufficient to convict a driver of OVI. The prosecution must present evidence sufficient to establish a nexus between the driver’s impaired condition and any type of drug of abuse. While circumstantial evidence may be used to convict a driver, such evidence must point to the use of a particular drug of abuse (for example, empty prescription bottles that have been filled very recently, or the odor of burnt marijuana). Appellate courts have also held that the prosecution must present some evidence of how that particular drug affected the defendant (in the form of expert testimony or testimony from someone familiar with the driver and how he or she acts while using the drug), and essentially how this effect caused the impairment.

Furthermore, most officers use the Horizontal Gaze Nystagmus (HGN) test, outlined in the NHTSA manual, to determine whether a driver may be intoxicated. According to the NHTSA manual, when performed correctly, the HGN can help an officer determine, with 88% accuracy, whether a suspect has a blood alcohol content of .08 or higher, or may suggest that the subject is under the influence of a CNS depressant (like bartbituates or sleep medications), an inhalant, or a dissociative drug, like PCP. However, the HGN cannot determine whether the driver is under the influence of many other drugs, including marijuana. Some Ohio courts have refused to admit the results of an HGN test into evidence in cases in which the defendant has been suspected of driving under the influence of marijuana.

With the increase of people driving under the influence of drugs and the push to legalize marijuana, the issue of driving under the influence of a drug or drugs of abuse will not go away. We will likely see an increase in court decisions regarding the topic.