Columbus OVI/DUI Attorney Blog
A driver struck a trooper while the trooper was directing traffic, and the trooper suffered serious injuries. The driver submitted a urine sample, and a urine test showed a concentration of inactive marijuana metabolite above the ‘legal limit’. The driver was charged with and convicted of Aggravated Vehicular Homicide and DUI (called ‘OVI’ in Ohio). The Ohio Supreme Court ultimately concluded operating a vehicle with a prohibited concentration of inactive marijuana metabolite can be a proximate cause of serious physical harm.
What is Proximate Cause?
For a charge of Aggravated Vehicular Assault under Ohio Revised Code (ORC) section 2903.08(A)(1)(a), the prosecution must prove the driver operated a motor vehicle and cause serious physical harm to another person as a proximate result of committing a violation of ORC 4511.19 (Ohio’s OVI statute). In colloquial terms, Ohio’s OVI statute prohibits operating a vehicle while ‘under the influence’ of, or ‘over the limit’ for, alcohol, a controlled substance, or a metabolite of a controlled substance.
To prove the serious physical harm was a proximate result of the OVI violation, the prosecution must prove the defendant’s driving ‘under the influence’ or ‘over the limit’ was the proximate cause of the serious physical harm. Proximate cause is present when the conduct is “so closely connected with the result and of such significance that the law is justified in imposing liability.”
In this case, the defendant was charged with both types of OVI: operating while ‘under the influence’ of marijuana metabolite and operating while ‘over the limit’ for marijuana metabolite. The judge who heard the evidence found the defendant not guilty of being ‘under the influence’ but guilty of being ‘over the limit’. If the defendant was not ‘under the influence’, the question is whether being ‘over the limit’ for an inactive marijuana metabolite can be a proximate cause of serious physical harm.
What is Inactive Metabolite?
The compound in marijuana which is psychoactive is THC (delta-9-tetrahydrocannabinol). ‘Psychoactive’ means it causes behavioral and cognitive effects, such as euphoria, relaxation, altered time perception, and lack of concentration. When ingested, THC is metabolized to the psychoactive metabolite ‘Hydroxy THC’ (11-hydroxy-delta 9-tetrahydrocannabinol) and then to the inactive metabolite ‘Carboxy THC’ (11-nor-9-carboxy-delta 9 tetrahydrocannabinol).
In this case, the marijuana metabolite found in the defendant’s urine was ‘Carboxy THC’. ‘Carboxy THC’ may be detected in a person’s urine for up to five weeks after ingesting THC. The behavioral and cognitive effects of THC last for only a few hours.
Can an Inactive Metabolite be a Proximate Cause?
The serious physical harm to the trooper was caused by the defendant hitting the trooper with his vehicle. The question is: could the defendant hitting the trooper be caused by operating the vehicle with ‘Carboxy THC’ in his urine?
An inactive metabolite like ‘Carboxy THC’ is, by definition, not psychoactive. Its presence in a person’s urine does not cause behavioral and cognitive effects. An inactive metabolite cannot impair a person’s driving ability. It is logically impossible for operating a vehicle with an inactive metabolite to cause a collision and therefore be the proximate cause of serious physical harm.
How did the Court Conclude There Was Proximate Cause?
The Court was not deciding whether proximate cause was actually proven beyond a reasonable doubt. Instead, the Court was deciding whether the evidence was sufficient to sustain the conviction. For that determination, the test is: when viewing the evidence in a light most favorable to the prosecution, could a reasonable trier of fact conclude operating a vehicle with a prohibited concentration of marijuana metabolite was the proximate cause of the serious physical harm. The court answered that question in the affirmative and held the evidence was sufficient to support the conviction for Aggravated Vehicular Assault.
The problem with the Court’s reasoning is the Court conflates the two types of OVI: operating while ‘under the influence’ and operating while ‘over the limit’. To support its conclusion, the Court referenced testimony of police officers who administered field sobriety tests and suspected the defendant was under the influence of marijuana.
The Court should not have considered this evidence because the conviction was based on the defendant being ‘over the limit’. In fact, the trial court specifically concluded the evidence did not prove the defendant was ‘under the influence’. The Court erroneously stated ORC 4511.19(A)(1)(j)(viii)(II) prohibits operating a vehicle while under the influence of a metabolite of a controlled substance. That statute actually prohibits operating a vehicle while having a prohibited concentration of marijuana metabolite: there is no reference to being ‘under the influence’.
Conclusion
There is a saying in the legal profession that “bad facts make bad law”. This case had bad facts. First, the victim of the offense was a trooper. While judges should be immune to the emotional impact of this fact, they certainly were aware of it. Second, it appears there was no evidence showing field sobriety tests do not detect marijuana intoxication. There should have been. Third, it appears there was no expert testimony by the defense to explain the difference between psychoactive metabolites and inactive metabolites. Perhaps if the record contained information about field sobriety tests and metabolites, the Court would have reached the correct conclusion that operating a vehicle while ‘over the limit’ for inactive metabolites cannot be the proximate cause of serious physical harm.