Articles Posted in DUI/OVI drugs

In January, Colorado became the first state to legalize recreational marijuana. In March, Colorado became the first state to televise entertaining public service announcements about the danger of driving under the influence of marijuana. The commercials are part of the Colorado Department of Transportation’s new campaign: “Drive High, Get A DUI“. Although Colorado is one of only two states to legalize recreational marijuana, it is not the only state to criminalize operation of a vehicle under the influence of marijuana. Contrasting Colorado’s handling of DUI marijuana with that of Ohio illustrates the deficiencies in Ohio’s approach.

In both states, the law makes it illegal to drive a vehicle under the influence of marijuana. Both states have a ‘limit’ of five nanograms of marijuana metabolite per milliliter of blood. Sounds the same, right? Not exactly. Ohio’s laws are different in at least three ways.

First, the states are measuring different stuff. Colorado measures active THC, the constituent of the cannabis plant that has psychoactive side effects. Ohio allows for measurement of any metabolite, and crime labs regularly measure an inactive metabolite which has no psychoactive effects.

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William Strebler was lucky and unlucky. When he drove his car between two parked trucks, nobody was killed or injured. That’s pretty lucky. After he was found guilty of driving under the influence of his prescribed pain medicine, his conviction was affirmed by the court of appeals, and he had to serve two years in prison. That’s not-so-lucky. His case illustrates the importance of trial strategy in Ohio D.U.I./O.V.I. defense and also demonstrates the difficulty of enforcing D.U.I./O.V.I. laws when the substance in question is a prescription medication.

Pills with blue background.jpgThe case of State v. Strebler was decided earlier this month by the Court of Appeals for the Ninth District of Ohio. After the accident, police arrived and had Strebler write a statement about what happened. He wrote a statement that was “largely incomprehensible and ended with the word ‘bowflex'”. Field sobriety tests showed “several indicators of impairment”, so the police arrested him and took him to a police station. His breath test showed no alcohol in his breath, so he was given a blood test. That test showed oxycodone and tramadol in his blood. He told the police he was taking both pain relievers pursuant to a prescription. Strebler was charged with O.V.I.

At his bench trial, Strebler testified that he appeared to be under the influence of drugs because he hit his head in the accident and lacked sleep. The prosecution elicited expert testimony from a toxicologist about how the two prescription medications would affect driving ability. The toxicologist testified that it depends on the individual: one person with that level of those drugs in their blood may be completely normal, and another person may be passed out. The Court concluded that Strebler’s explanation the circumstances was not credible and found him guilty of O.V.I.

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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.

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.

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.