Columbus OVI/DUI Attorney Blog

Kerry Kennedy recently ran her vehicle into a truck and continued driving. She was soon found slumped over the steering wheel, and she was unable to remember what happened, as reported by ABC News. Kennedy said it was possible she accidentally took Ambien that morning rather than a thyroid pill. She also said an examination by her doctors revealed she had a seizure. Kennedy was charged with driving under the influence of drugs and has pled not guilty. Her crash raises questions regarding driving under the influence of Ambien.

Ambien, the brand name for Zolpidem, is a sedative-hypnotic drug used to treat insomnia by slowing activity in the brain to allow sleep. It is intended to be taken just before sleeping, as "you will probably become very sleepy soon after you take zolpidem and will remain sleepy for some time after you take the medication", according to the U.S. National Library of Medicine. As cautioned by the F.D.A., "After taking Zolpidem Tartate Tablets, you may get up out of bed while not being fully awake and do an activity that you do not know you are doing. The next morning, you may not remember that you did anything during the night."

In Ohio D.U.I.(O.V.I.) cases, Ohio Revised Code section 4511.19 says no person shall operate a vehicle if the person is under the influence of alcohol, a drug of abuse, or a combination of them. Ambien is considered a drug of abuse, so a person could be found guilty of O.V.I. in Ohio for driving under the influence of Ambien.

On the other hand, a driver's use of Ambien may present an Ohio D.U.I. lawyer with a defense to an O.V.I. charge. Ohio Revised Code section 2901.21 says that a person is not guilty of an offense unless the person's conduct was a voluntary act. That section also says "reflexes, convulsions, body movements during unconsciousness or sleep, and body movements that are not otherwise a product of the actor's volition, are involuntary acts." It is questionable whether a person affected by Ambien is acting voluntarily when they may "do an activity that you do not know you are doing."

Kerry Kennedy's accident raises questions about the danger of driving under the influence of Ambien. One question is, from a policy perspective, what do we do about it? Is driving while affected by Ambien an offense, or is it a defense to an offense? It will be interesting to see how the Kerry Kennedy case plays out.

The Chicago Tribune reported that the driver of a tour bus in Chicago struck and killed a pedestrian, and a blood test following the accident was positive for cocaine. The bus driver is now being held without bail and likely facing charges of D.U.I. and Aggravated Vehicular Homicide. This tragic incident highlights the issues of driving under the influence of drugs, vehicular homicide, and commercial drivers.

When we hear a bus driver was charged with D.U.I., most people think of driving under the influence of alcohol. Under Ohio Law, an O.V.I. (same as D.U.I.), can be committed with drugs in two ways: (1) operate a vehicle under the influence of a drug of abuse; and (2) operate a vehicle with a prohibited concentration of a drug in one's blood or urine (for cocaine, the prohibited concentration is 150 nanograms). The penalties for O.V.I.-drugs are the same as the penalties for O.V.I.-alcohol.

The bus driver will also likely be charged with the Illinois equivalent of Ohio's Aggravated Vehicular Homicide law. A person is guilty of this offense if the person causes the death of another person by driving recklessly or operating a vehicle under the influence. The penalties for Aggravated Vehicular Homicide include a prison sentence up to eight years and a lifetime driver's license suspension.

The bus accident also involves consequences for the driver's commercial driver's license (CDL). In Ohio, a commercial driver found operating with a prohibited concentration of alcohol or drugs will have an immediate license suspension with no driving privileges for commercial vehicles. If the commercial driver is convicted of an O.V.I., there is a one-year CDL disqualification.

It turns out the bus driver involved in this tragic accident had prior traffic violations, had served time in prison for sexual assault, and had additional sexual assault charges filed after the accident. It makes one wonder what kind of background check was done before he was hired to drive a tour bus and be responsible for the well-being of so many people.

When we think of O.V.I. (D.U.I.) cases, we tend to think of cases involving a person driving under the influence of alcohol. However, Ohio O.V.I. law also prohibits operating a vehicle under the influence of a drug of abuse, and many prescription medications are "drugs of abuse". In a recent O.V.I. case, the court of appeals stated the defendant could be convicted of O.V.I. for operating a vehicle under the influence of prescribed medication.

The Ohio O.V.I. statute (R.C. 4511.19) says, "No person shall operate any vehicle *** within this state if, at the time of the operation...the person is under the influence of alcohol, a drug of abuse, or a combination of them." The law also prohibits operating a vehicle with certain concentrations of alcohol or certain drugs in a person's system. At or above those concentrations, a driver is per se under the influence. The statute lists certain drugs and their prohibited concentrations, including amphetamine, marijuana, cocaine, heroin, and L.S.D. The statute does not list prohibited concentrations for prescription medications like Percocet, Vicadin, and Valium. Drugs are typically detected by urine tests and blood tests.

The recent case involving a conviction for O.V.I. based on prescription medications was State v. Andera. In that case, the defendant caused an accident which led to the death of one person and injuries to two others. The defendant was charged with O.V.I., Aggravated Vehicular Homicide, and Aggravated Vehicular Assault.

At trial, the evidence showed that the defendant had Vicadin (hydrocodone) and Valium (diazepam) in his blood. The defendant argued that he should not be found guilty because he was following the advice of his doctors by taking his prescription medication, so he did not have any intent to commit the offense. The defendant was convicted and sentenced to 15 years in prison. The court of appeals commented that the prescription medication defense was futile because O.V.I. (and the other charges) is a strict liability offense; no intent is required...the prosecution need only prove the defendant was under the influence while operating a vehicle.

Interestingly, if a defendant is charged with a per se O.V.I. offense (operating with a prohibited concentration of a drug), he can raise the defense that he was following the advice of his doctors by taking the prescribed drug because this defense is built-into the O.V.I. law in paragraph (K) of R.C. 4511.19. In the Andera case, this defense would not have worked for two reasons. First, Vicodin and Valium are not in the list of drugs with per se offenses. Second, his blood test showed he had approximately ten times the therapeutic dosage of Valium and five times the therapeutic dosage of Vicodin in his system at the time of the crash.

Even if a driver only has the therapeutic dose of prescribed medication, the driver can be convicted of O.V.I. in Ohio if the prescribed medication is a "drug of abuse" and is impairing the driver's ability to operate the vehicle. Learn from this case:
Lesson #1: If a prescribed medication impairs your ability to drive, don't drive.
Lesson #2: Don't argue you were following your doctor's advice if you took ten times the prescribed amount.