Opinion
Case No. 3:08-po-042.
January 30, 2009
DECISION AND ORDER
This case came on for trial on Thursday, January 29, 2009, to the Court sitting without a jury. At the conclusion of the Government's case, the Court granted a motion to dismiss under Fed.R.Crim.P. 29 on the open container charge because tehre was no evidence at all of whether the bottle depicted in Government's Exhibit 1 had any liquid in it when seized; certainly as shown in the picture it appears to be empty.
The charge of driving under the influence was submitted for decision with the Government's request that the Court take judicial notice of the facts about Percocet set forth in the Physician's Desk Reference ("PDR"); copies of the three relevant pages were reproduced and offered as Government Exhibit 5. Relevant case law indicates it is proper to take judicial notice of the content of the PDR when it is relevant to some fact in issue. Smith v. Eason, 865 F.2d 1259, 1988 WL 138736 (4th Cir. Dec. 15, 1988) (unpublished); Crowder v. Shalala, 1993 WL 545159 (S.D. Tex. Dec. 30, 1993), State v. Mays, 83 Ohio App. 3d 610, 615 N.E. 2d 641 (1992), all interpreting Fed.R.Evid. 201(B)(2) or the cognate Ohio R. Evid. 201(B)(2). No case law was discovered disapproving judicial notice of the PDR.
Ohio Revised Code § 4511.19(A)(1)(A) makes it unlawful to operate a motor vehicle while under the influence of alcohol, a drug of abuse, or the combined influence of both. Defendant took a breathalyzer test which confirmed her statement to Airman Salisbury that she had not been drinking.
However, Ms. Dillavou did admit to Airman Salisbury that she had taken three Percocets, which she said her doctor had told her she could do. Relevantly, the PDR establishes that 4511.19
1. Percocet is a controlled substance and therefore comes within the definition of a "drug of abuse" in Ohio Revised Code § . 2. "Percocet tablets may impair mental and/or physical ability required for the performance of potentially hazardous tasks (e.g., driving, operating heavy machinery)" 3. Percocet consists of oxycodone and acetaminophen. "Oxycodone is a semisynthetic pure opioid agonist whose principal therapeutic action is analgesia." 4. Percocet is a central nervous system depressants, as is alcohol. While this information is relevant, it is not enough to establish beyond a reasonable doubt that Defendant's ability to operate a motor vehicle was substantially impaired by her ingestion of Percocet. First of all, Percocet comes in six different doses and we do not know which of those tablets Ms. Dillavou took. Officers seized four prescription bottles from her car which are variously depicted in Government Exhibits 2, 3, and 4. From one of these the label has been completely obscured. Two others are labeled for Clonazepam, not Percocet. The fourth is labeled for something ending in done in 100 mg tablets; none of the available tablets of Percocet are 100 mg. size. Although the pictures of these bottles were admitted without objection, it is unclear what relevance they have. No proof was offered that the pills in the bottles were consistent with the labels. The three bottles on which the label is legible are all for "Tina Dilavou," so they appear to have been in her possession lawfully.There is some evidence from Airman Salisbury's observation of the one-leg stand and walk-and-turn tests that Defendant's motor abilities were impaired. The Court cannot, however, accept his testimony about the results of the horizontal gaze nystagmus test because he is not the person who administered the test and he was not in the correct position to observe all of the results of administration.
It is not clear that his lack of certification by the State of Ohio would prevent admission of his testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).
Aside from the field sobriety tests, there was little to show that Ms. Dillavou's ability to drive was substantially impaired. There was no testimony of erratic driving, except that she did not heed the sign at the gate. She appeared to be sleepy, but it was 12:30 a.m. She became combative when searched, but that it not a likely effect of a central nervous system depressant or noted in the PDR as an expected side effect of Percocet. Airman Salisbury testified he had no doubt she was under the influence of drugs. While lay testimony to that effect is regularly accepted by courts, there was no foundation laid to show his familiarity with the effect of Percocet on human behavior. In contrast, the testimony of law enforcement officers about the effects of alcohol is usually premised on establishing their familiarity with those effects, either from their own social life or from arrest experience or both.
In sum, while Airman Salisbury certainly had probable cause to arrest Ms. Dillavou for the offense of OMVI, the Court is not persuaded of her guilt of that offense beyond a reasonable doubt. She is found not guilty and discharged from responding further. The Court wishes to caution her, however, that the fact that a doctor has prescribed a medication does not mean that it can be taken without impairing one's ability to drive, as the PDR warns with respect to Percocet.