Are the Effects of a Prescription Drug the Proper Subject of Judicial Notice?

Suppose that David Defendant is charged with driving while impaired based upon an incident on in which he drove his car off the road and crashed into a tree.  The arresting officer testifies at trial that Defendant was unsteady on his feet at the scene of the accident and that she saw no signs of a head injury.  Defendant was arrested and consented to withdrawal of a blood sample for analysis.  The State notified Defendant on AOC-CR-344 of its intent to introduce as evidence at trial without the testimony of the chemical analyst an SBI laboratory report reporting the results of an analysis of his blood.  Defendant did not object to introduction of the report. At trial, the State introduced the report, which states that analysis of Defendant’s blood “confirmed the presence of the following substance:  carisoprodol.”

The district court judge presiding over the case has heard testimony regarding impairment from carisoprodol in previous cases.  She knows that this is the generic name for the drug marketed as Soma.  She has heard testimony in previous trials that this drug can cause drowsiness, dizziness and vertigo.  The State, however, offers no evidence in Defendant’s trial to connect carisoprodol with the behavior observed by the arresting officer at the scene of the crash.  At the close of the State’s evidence, Defendant moves to dismiss the state’s case for insufficiency of the evidence, arguing that the State has not shown a link between Defendant’s balance issues and the drug detected in his blood.

May the judge take judicial notice of the effect of the drug based on what she has learned in other trials?  I don’t think so.  Here’s why.

N.C. R. Evid. 201 governs the taking of judicial notice.  The rule provides that “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”

There are no North Carolina cases addressing the propriety of taking judicial notice of the side effects of drugs.  Several cases from other states indicate, however, that this generally is not a proper subject for judicial notice.  See White v. State, 316 N.E.2d 699 (Ind. App. 1974) (noting that judicial notice generally is restricted to matters of common public knowledge and that the chemistry of drugs such as Methadone Hydrachloride does not qualify as a matter commonly known); Commonwealth v. Hartman, 534 N.E.2d 1170, 1175 n.9 (Mass. 1989) (finding symptoms of insulin shock as described in medical dictionary not a proper subject for judicial notice); Commonwealth v. Johnson, 794 N.E.2d 1214 (Mass. App. Ct. 2003) (holding in case in which State asked the defendant to read several passages from a “pill book” purchased at a CVS pharmacy describing the effects of Oxycontin and Diazepam and in which the book itself was admitted as evidence that pill book was not appropriate subject for judicial notice); Commonwealth v. Cassidy, 521 A.2d 59 (Pa. Commw. Ct. 1987) (holding that the side effects of a prescription drug and the causes and effects of relaxation of the arteries are not matters of common knowledge and therefore not proper objects of judicial notice).

That said, the impairing effects of certain drugs in widespread use, such as marijuana, may be within the common knowledge of the average juror (a role filled by the district court judge in criminal trials in district court) and thus may be considered in evaluating the State’s evidence. See, e.g., State v. Clark, 801 A.2d 718 (Conn. 2002) (defendant’s failure to elicit testimony from an eyewitness about the effects of the marijuana on his perception did not preclude the jury from considering the effects marijuana may have had on the witness’s observations).  It seems doubtful that the impairing effects of a drug such as carisoprodol would qualify as within the common knowledge of the average juror.  Thus, it would not be proper for the judge to rely upon information about the effects of carisoprodol gleaned from another trial or any source other than evidence presented at this defendant’s trial.

Suppose the judge doesn’t take judicial notice of the effects of carisoprodol.  Defendant moves to dismiss the charges at the close of the state’s evidence based upon insufficiency of the evidence.  Alerted to the potential deficiency in its proof, the State moves to admit the Physicians’ Desk Reference (PDR) and asks that the judge take judicial notice of carisoprodol’s effects as listed in the PDR.  Defendant objects to the introduction of the report and the taking of judicial notice and renews his motion to dismiss.  Must the case be dismissed for insufficiency of the evidence?  Is it too late to consider the State’s request that the court take judicial notice?  May the court take judicial notice of the effects listed in the PDR?  Is the work admissible under a hearsay exception? For those who can’t stand the suspense, my answers are no on all counts.  My thoughts follow.

The standard of review of a motion to dismiss for insufficient evidence is whether the State presented substantial evidence of each element of the offense and defendant’s being the perpetrator.  State v. Hernandez, 188 N.C. App. 193, 196 (2008).  Substantial evidence is relevant evidence that a reasonable person might accept as sufficient to support a conclusion.  Id. The court reviews the evidence in the light most favorable to the State, giving every reasonable inference arising from that evidence to the State, and resolving all contradictions in favor of the State. Id. at 196-97.

In State v. Cousins, No. COA01-796, 2002 WL 1902614,152 N.C. App. 478 (August 20, 2002)(unpublished), the court determined that the trial court properly denied the defendant’s motion to dismiss impaired driving charges for insufficiency of the evidence where evidence established that defendant drove his truck through a red light and crashed into another truck, staggered at the scene, looked dazed, was incoherent, performed poorly on field sobriety tests, refused to submit to a blood test and admitted to taking the painkiller Lortab. The court rejected the defendant’s argument that the State was required to produce expert testimony regarding the impairing effects of Lortab and whether the defendant’s condition was consistent with ingestion of Lortab.

In this case, the State has presented evidence that Defendant crashed, was unsteady on his feet and had carisoprodol in his blood.  This sort of evidence strikes me as enough—construed in the light most favorable to the State—to withstand the motion to dismiss.

And it’s not too late to take judicial notice, which, pursuant to Rule 201(f), “may be taken at any stage of the proceeding.” But I don’t think the State’s proffer of the PDR renders the effects of carisoprodol a proper subject of judicial notice. While a court can consult a reference work such as the PDR to identify a drug based its brand name or generic name, see, e.g., Commonwealth v. Greco, 921 N.E.2d 1001 (Mass. App. Ct. 2010) (finding that trial court did not err in taking judicial notice based on the PDR that Seroquel is the brand name for the generic drug quetiapine; noting that “[w]hile this is not a matter of common knowledge, it is readily ascertainable from the PDR”), or to determine the capsule size by which a drug is administered, see, e.g., State v. Kennedy, 771 P.2d 281 (Or. App. 1989), it is doubtful whether a court can rely on such a reference to establish the side effects of certain drugs.  See, e.g., State v. Kennedy, 771 P.2d 281 (Or. App. 1989) (court properly refused defendant’s request in impaired driving case to take judicial notice of the behavioral effects produced by toxicity of serum lithium levels as outlined in PDR as the “PDR is not a resource that is beyond question regarding generalizations pertaining to [such effects]”).  But see Ohio v. Stratton, 1978 WL 215764, (Ohio App. 3 Dist. March 10, 1978) (unpublished) (holding that trial court could take judicial notice of qualities and effects of Quaalude as described in PDR).

Moreover, without an expert on the witness stand, the only conceivable hearsay exception is Rule 803(17) and it strikes me as a bit of a reach to characterize the PDR as akin to market reports, tabulations and published compilations of the nature contemplated by the rule.  Cf. Ratner v. General Motors Corp., 574 A.2d 541, 546 (N.J. Super. 1990) (declining to address the “troublesome issues” of whether PDR evidence qualifies for a hearsay exception or is a proper subject of judicial notice, but nonetheless holding that evidence “of the cornucopia of possible side effects listed in the PDR did not have a tendency to prove any material fact” and thus was improperly admitted in products liability action where there was no evidence plaintiff suffered from listed side effects).

Chime in if you agree, disagree or have insight about how this plays out in practice.

1 thought on “Are the Effects of a Prescription Drug the Proper Subject of Judicial Notice?”

  1. I had a case of diazepam impairment in Superior Court recently and I used to SBI lab agent to testify as to the side effects of that medication. But then I got worried that would not be enough so I called in a pharmacist as well. Anyone used just the SBI lab agent??


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