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“Substantial impairment” in a rape case might be defined differently than the “impairment” we all know and love from OVI cases.  But let’s be honest, it really all boils down to one thing: does that person look drunk to you?  

No matter how thinly we slice definitions, lawyers and jurors alike are really evaluating the “look” of someone’s drunkenness. As it turns out, courts look at it that way too. That’s why the Eighth District’s recent decision on the insufficiency of the State’s “substantial impairment” evidence is such a head turner. State v. Foster, 2020-Ohio-1379 (Apr. 6, 2020). 

Like so many OVI-impaired cases, the State in Foster’s case had evidence that the alleged victim consumed a lot of alcohol on the night in question.  It had more than that, actually. The State even had a forensic scientist use a reverse extrapolation method to explain what the alleged victim’s blood alcohol level would have been at the time in question. And it sounded really high. 

But here is the problem, someone’s blood alcohol level—high or otherwise—doesn’t really matter that much when you’re talking about impairment. It also does not matter when you’re talking about whether one person “knows” another person is substantially impaired. Foster’s own expert, a clinical pharmacologist, explained this difference to the jury.  What matters is, in the end, still the same: does that person look drunk to you? 

In Foster’s case, even though the alleged victim described herself as “a drunken mess,” she was walking fine, talking fine, and acting fine. And nobody said anything different. The Eighth District held there was insufficient evidence that she was “substantially impaired,” or that Foster knew that she was.  The takeaway: in substantial-impairment rape cases, just like OVI, there is a difference between consumption and impairment. How a person acts is key.