City of Chillicothe v. Lunsford

• Decision Date: 16 November 2015
• Docket Number: No. 15CA3481.,15CA3481.
• Citation: 49 N.E.3d 852
• Parties: CITY OF CHILLICOTHE/State of Ohio, Plaintiff–Appellant, v. Mark R. LUNSFORD, Defendant–Appellee.
• Court: Ohio Court of Appeals

49 N.E.3d 852

CITY OF CHILLICOTHE/State of Ohio, Plaintiff–Appellant

v.Mark R. LUNSFORD, Defendant–Appellee.

No. 15CA3481.

Court of Appeals of Ohio, Fourth District, Ross County.

Nov. 16, 2015.

Sherri K. Rutherford, Chillicothe City Law Director, and Pamela C. Wells, Assistant City Law Director, Chillicothe, OH, for appellant.¹

Opinion

HARSHA

, J.

{¶ 1} The state charged Mark R. Lunsford with operating a motor vehicle under the influence of a drug of abuse, operating a vehicle while under the influence while possessing a commercial driver's license, and a marked lane violation. At trial the State presented evidence of Lunsfords erratic driving and his admission that he had taken Lortab

and Xanax, which are prescription drugs, either the evening before or the following morning prior to operating his semi-truck. The trial court found Lunsford guilty of the marked lane violation, but granted Lunsford's Crim.R. 29(A) motion for an acquittal on the charges of operating a motor vehicle under the influence. The trial court ruled that the state failed to provide sufficient evidence that there was a nexus between Lunsford's ingestion of prescription drugs and his impaired driving.

{¶ 2} We granted the state's motion for leave to appeal. The state contends that the trial court erred as a matter of law in granting Lunsford's Crim.R. 29

motion. According to the state the court misapplied our holding in State v. Husted, 2014-Ohio-4978, 23 N.E.3d 253 (4th Dist.) by requiring the state to present evidence of a nexus between the consumption of prescription drugs and his impairment. The state argues that it is legally sufficient to show that the driver ingested prescription drugs and was impaired, i.e. there is no requirement to show that the drug ingested has a potential to impair a person's judgment or reflexes. However, the state's proposition is incorrect.

{¶ 3} Because the trial court correctly applied the law in deciding Lunsford's Crim.R. 29(A)

motion, we affirm the trial court's judgment.

I. ASSIGNMENT OF ERROR

{¶ 4} The state raises one assignment of error:

THE TRIAL COURT ERRED IN GRANTING APPELLEE'S RULE 29

MOTION.

II. LAW AND ANALYSIS

A. State's Appeal and our Standard of Review

{¶ 5} A directed verdict of acquittal in a criminal case is a “final verdict” within the meaning of R.C. 2945.67(A)

and cannot be appealed. State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324. State v. Bistricky, 51 Ohio St.3d 157, 555 N.E.2d 644 (1990). However, under R.C. 2945.67(A), a court of appeals has discretion to review the rulings of substantive law that result in a judgment of acquittal as long as the judgment itself is not appealed. State v. Bistricky, supra, syllabus; State v. Angel, 4th Dist. Gallia App. No. 91CA29, 1992 WL 79573 (April 14, 1992) ; State v. Untied, 8th Dist. Cuyahoga App. No. 100880, 2014-Ohio-3920, 2014 WL 4460412. We review questions of law under a de novo standard of review. State v. Certain, 180 Ohio App.3d 457, 2009-Ohio-148, 905 N.E.2d 1259 (4th Dist.).

{¶ 6} We granted the state leave to appeal the trial court's ruling that the state must prove a “nexus” between the drug ingested and the impairment in order to establish a violation of R.C. 4511.19(A)(1)(a)

, which prohibits the operation of a vehicle when under the influence of a drug of abuse. The trial court found that the state had established that Lunsford was impaired and that he had ingested two prescription drugs, which were identified as “scheduled substances,” But it also found that the state failed to present evidence of the effect those drugs have on a person's judgment or reflexes or how those drugs may have affected Lunsford. The trial court cited our decision in Husted, supra, as requiring this “nexus” in order to support a conviction for driving under the influence of a drug of abuse.

B. State v. Husted and the Nexus Requirement

{¶ 7} In Husted the defendant faced a charge of physical control of a vehicle while under the influence of alcohol, a drug of abuse, or a combination of them in violation of R.C. 4511.194(B)(1)

. Husted was asleep and parked at a gas station/convenience store when a police officer awoke her and noted that she had very slurred speech, red, bloodshot eyes and was unsteady on her feet. Husted admitted to snorting drugs, but there was no evidence of what drug Husted had snorted or whether the drug constituted a drug of abuse. The state did not obtain a urine or blood test. Husted moved for an acquittal under Crim.R. 29(A), which the trial court overruled.

{¶ 8} We held that the trial court erred in denying Husted's Crim.R. 29

motion for judgment of acquittal, finding that the General Assembly requires some evidence “to establish a nexus between the defendant's impaired condition and any type of drug abuse.”

Husted, 2014-Ohio-4978, 23 N.E.3d 253, at ¶ 15

. In cases where there is evidence that the defendant has consumed drugs, there must be some evidence that the drug consumed “has the potential to impair a person's judgment or reflexes.” Husted at ¶ 21. See also,

State v. Richardson, 2015-Ohio-757, 29 N.E.3d 354 (2nd Dist.) (defendant admitted to taking pain medication containing hydrocodone and acetaminophen, but state failed to present evidence of what the possible side effects of the pain medication typically might be); State v. May, 2d Dist. Montgomery No. 25359, 2014-Ohio-1542, 2014 WL 1419568, ¶ 48 (defendant admitted to taking the prescription drug Cymbalta, but state offered no evidence of the potential effects Cymbalta has on judgment or reflexes). It is not enough to show that the defendant consumed a “controlled substance,” or a “dangerous drug.” The state must show that the drug consumed is one “that can result in impairment of judgment or reflexes.” See, R.C. 4506.01(M).

{¶ 9} Prescription drugs are “dangerous drugs” as defined in R.C. 4729.01(F)

. Thus, if the state were required to prove only that the defendant has consumed a prescription drug without also having to show that the prescription drug impairs judgment or reflexes, then a person taking any type of prescription medication who is impaired while driving, would be guilty of violating R.C. 4511.19(A)(1)(a) regardless of whether the prescription drug caused the impairment. We rejected this in Husted, citing State v. May, 2nd Dist. Montgomery No. 25359, 2014-Ohio-1542, 2014 WL 1419568, ¶ 47, appeal not allowed, 140 Ohio St.3d 1498, 2014-Ohio-4845, 18 N.E.3d 1252. We held that there must be some “evidence how the unspecified drug actually affects a person * * * or that the particular drug has the potential to impair a person's judgment or reflexes.” Husted at ¶ 21.

[W]hen a prosecution under R.C. 4511.19(A)(1)(a)

is based on driving under the influence of medication, the State must do more than simply present evidence that the defendant has taken the medication and shows signs of impairment. The United States Food and Drug Administration has approved more than a thousand prescription drugs (which are “drugs of abuse” under Ohio law), all of which may have any number of different side effects. * * * Not all side effects involve the impairment of judgment or reflexes. Although some medication may be familiar to some of the jurors, the various physiological effects of different medications is (sic) outside the common knowledge of most jurors and many trial judges.

State v. May, 2014-Ohio-1542, 2014 WL 1419568, at ¶ 46

.

{¶ 10} The state argues that our decision in Husted conflicts with an earlier decision in State v. Stephenson 4th Dist. Lawrence No. 05CA30, 2006-Ohio-2563, 2006 WL 1413249

, which involved a conviction for operating a vehicle under the influence of a drug of abuse. In Stephenson, the defendant appealed the trial court's conviction as against the manifest weight of the evidence in light of his alternative explanation for his erratic driving. Stephenson did not argue that the state failed to present evidence that morphine or methadone has the potential to impair a person's judgment or reflexes. Instead, his argument was based on his testimony that his impairment was actually caused by various medical conditions, including lupus, hypertension and hyperthyroidism. Because the question of whether the state provided evidence that morphine or methadone impairs a judgment or reflexes was not at issue, the decision neither discusses it nor, as the state argues, does it stand for the proposition that the state need not show a nexus between a drug and the defendant's impairment. Thus, Stephenson is distinguishable.

C. Applying Husted

{¶ 11} Therefore, in cases in which the state relies upon some evidence that the defendant consumed prescription drugs, the state must also present some evidence of how the particular medicine actually affects a person or that the drug has the potential to impair a person's judgment or reflexes. Husted at ¶ 21.

The essence of R.C. 4511.19(A)(1)(a)

is to prohibit impaired driving while under the influence. It is certainly not intended to criminalize the operation of a vehicle by a person taking a cholesterol or blood pressure medication, let alone an anti-narcoleptic or ADHD prescription, unless that drug negatively influences the defendant's driving abilities. And in many situations, especially those involving prescription drugs, this can only be proved by direct testimony linking the influence of the drug to the driving. This could be established through the testimony of an expert who is familiar with the potential side effects of the medication, or perhaps of a layperson (such as a friend or family member) who witnessed the effect of the particular drug on the defendant-driver.

State v. May, at ¶ 47.

{¶ 12} Here, the state presented the testimony of two witnesses: Trooper Holbrook, who stopped Lunsford, performed the field sobriety tests, and took him back to the state highway patrol post, and Trooper Craft who conducted an investigation at the post. Trooper Holbrook testified that Lunsford was impaired and had failed...