Man’s OVI conviction reversed on appeal

DAVE MOSIER/independent editor

The Third Ohio District Court of Appeals has reversed the OVI conviction of a local man based on what it decided was a lack of expert testimony concerning whether Fensler’s use of Benadryl resulted in impaired driving.

Dustin P. Fensler had appealed an October 9, 2019, judgment in Van Wert Municipal Court convicting him of operating a motor vehicle while under the influence of a drug of abuse (OVI).

Judge William Zimmerman, who wrote the appellate decision, noted that Fensler came in contact with a Van Wert police officer at approximately 11:04 p.m. July 11, 2019, after being called to his place of employment because an alarm had activated there. Fensler, who had stated he was “just going to bed” when he received the call, was a key holder for the business and was asked to unlock the building so a security check could be made.

According to the officer, when Fensler arrived, his “pupils were dilated, his speech was very fast and mumbled, [and] he was making unusual movements with his jaw.”

Suspecting that the man was impaired, the officer asked Fensler to perform field-sobriety tests. The defendant also submitted to a blood-alcohol-concentration (BAC) test, which was negative, and a urine test, which was not admitted as evidence.

Following the field-sobriety tests and Fensler’s admission that he “takes methadone in the mornings for an opiate addiction” and had taken four Benadryl approximately three hours prior to receiving the call from police, Fensler was arrested and charged with OVI, a first-degree misdemeanor.

After Fensler pleaded not guilty during an arraignment hearing on July 13, 2019, a jury trial was conducted on October 8, 2019.

The officer testified that he concluded Fensler was impaired based on the field sobriety examinations, and also noted that the defendant’s taking of four Benadryl tablets was over the recommended dosage for that over-the-counter drug.

The officer also testified that, during his research, he had discovered that taking more than the recommended dosage of Benadryl could result in enlarged pupils, jitteriness, restlessness, paranoia, and steadiness and balance issues, and concluded that it would impair a person’s ability to operate a motor vehicle.

In his defense, Fensler testified that he is an “overanxious person” and that he “was overly, really above and beyond anxious” when he arrived at his workplace to unlock the building for law enforcement because he “wasn’t 100 percent sure what was waiting inside. Could have been a bad guy.”

According to Fensler, law enforcement made him enter the building first “and that added to [his] anxiety . . . because [he] was thinking there could be somebody in there.”

Following the evidentiary portion of the trial, Fensler was found guilty of OVI, fined $375 and five days in jail, which were suspended if he completed a certified driver’s intervention program, and his driver’s license was suspended for a year.

Fensler’s attorney, Scott Gordon, appealed the conviction on November 7, 2019, citing four assignments of error, including the fact that the court convicted him based on insufficient evidence, which consisted solely of the police officer’s testimony and unqualified expert opinion regarding the Benadryl.

Under the Ohio Revised Code statute related to OVI, which prohibits someone from operating a motor vehicle while under the influence of alcohol, a drug of abuse, or a combination of the two. A “drug of abuse” is defined as “any controlled substance, dangerous drug as defined as defined in the statute, or over-the-counter medication that, when taken in quantities exceeding the recommended dosage, can result in impairment of judgment or reflexes”.

As presented by the prosecution in Fensler’s case, the defendant was operating a motor vehicle while under the influence of an over-the-counter medication, Benadryl, that he took in a quantity exceeding the recommended dosage.

However, Judge Zimmerman noted that, while the prosecution was required to prove that Benadryl taken in a quantity exceeding the recommended dosage actually does lead to impairment of judgment or reflexes, it relied only on the police officer’s testimony, with no expert witness to confirm the officer’s unqualified assertion about the over-the-counter medication.

“Based on the specific facts and circumstances of this case, we conclude that the State presented insufficient evidence that Benadryl, when taken in a quantity exceeding the recommended dosage, can result in impairment of judgement or reflexes,” Judge Zimmerman wrote in his decision, adding that the officer’s testimony and “research” regarding Benadryl were insufficient to proof Fensler was under the influence of a drug of abuse.

The opinion, Judge John Willamowski concurred with the opinion in its entirety, while Judge Stephen Shaw concurred with the judgment only.

The case was also remanded back to Van Wert Municipal Court for further action.