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.