Foreseeability and Metabolite-Based OVI: Proximate Cause as a Distinct Element in Aggravated Vehicular Assault after State v. Balmert

I. Introduction

The Supreme Court of Ohio’s decision in State v. Balmert, 2025-Ohio-5588, addresses a rapidly evolving and technically complex area of criminal law: the relationship between “per se” drugged driving based on marijuana metabolites and aggravated vehicular assault. The opinion clarifies the role of proximate cause in aggravated vehicular assault prosecutions under R.C. 2903.08(A)(1)(a) when the predicate offense is operating a vehicle with a prohibited concentration of marijuana metabolites (R.C. 4511.19(A)(1)(j)(viii)(II)).

The case arises from a serious accident in Lorain County in which the defendant, Edward Balmert, struck an Ohio State Highway Patrol trooper, C.G., who was directing traffic at a darkened intersection. C.G. suffered severe injuries that ended her law-enforcement career. Toxicology showed that Balmert’s urine contained more than 200 ng/mL of marijuana metabolites—far above the statutory per se threshold of 35 ng/mL.

After a bench trial, the court acquitted Balmert of impairment-based OVI and of one form of vehicular assault, but convicted him of per se marijuana-metabolite OVI and aggravated vehicular assault predicated on that OVI. On discretionary review, the key legal questions were:

Is proximate cause a separate and distinct element in aggravated vehicular assault that must be proved beyond the mere commission of the predicate OVI offense?
Was there sufficient evidence that the per se marijuana-metabolite OVI proximately caused the trooper’s injuries?
May a court rely on evidence related to a version of OVI on which the defendant was acquitted to establish elements of a compound offense?

The majority opinion (Fischer, J.) affirms the conviction, formally recognizing proximate cause as a distinct element but concluding that the State met its burden by showing that injury to someone on the road was a foreseeable consequence of driving with prohibited marijuana-metabolite levels. Justice Brunner concurs in part and dissents in part, arguing that the State failed to show any meaningful causal connection between an inactive metabolite concentration and the accident, especially where the trial court acquitted on the impairment-based OVI count.

II. Summary of the Opinion

A. Factual Background

Date and scene: June 9, 2020, around 6:00 p.m., daylight, clear weather, in Lorain County at the intersection of Middle Ridge Road and a State Route 2 exit ramp.
Victim: Trooper C.G., an experienced Ohio State Highway Patrol trooper, directing traffic in a reflective vest because the traffic light was out.
Incident: Balmert stopped at the intersection and then turned left onto Middle Ridge Road, striking C.G. with his vehicle and causing serious, career-ending injuries.
Investigation: Officers, including a certified Drug Recognition Expert (DRE), conducted field sobriety and drug-recognition testing. Balmert admitted regular use of “hemp” products, including earlier that day, and voluntarily provided a urine sample.
Toxicology: Urinalysis showed marijuana metabolites in excess of 200 ng/mL, nearly six times the statutory per se limit of 35 ng/mL under R.C. 4511.19(A)(1)(j)(viii)(II).

B. Procedural History

Balmert was indicted on four counts:

Aggravated vehicular assault, R.C. 2903.08(A)(1)(a) (harm as the “proximate result” of an OVI offense).
Vehicular assault, R.C. 2903.08(A)(2)(b).
Impairment-based OVI, R.C. 4511.19(A)(1)(a) (operating a vehicle “under the influence of alcohol, a drug of abuse, or a combination of them”).
Per se marijuana-metabolite OVI, R.C. 4511.19(A)(1)(j)(viii)(II) (urine marijuana-metabolite concentration ≥ 35 ng/mL).

After a bench trial:

The court convicted Balmert of:
- Aggravated vehicular assault (Count 1), predicated on OVI.
- Per se marijuana-metabolite OVI (Count 4) under R.C. 4511.19(A)(1)(j)(viii)(II).
The court acquitted him of:
- Vehicular assault (Count 2).
- Impairment-based OVI (Count 3) under R.C. 4511.19(A)(1)(a).

The trial court imposed a two-year mandatory prison term for aggravated vehicular assault and three days confinement for the per se OVI. On appeal, the Ninth District affirmed the aggravated vehicular assault conviction, holding that proximate cause was proven beyond a reasonable doubt, but reversed an unrelated post-release control issue.

The Supreme Court of Ohio accepted three propositions of law, all focused on proximate cause and the proper use of evidence related to acquitted OVI variants:

Proximate cause is a distinct element in aggravated vehicular assault/homicide and is not automatically satisfied by proof of the predicate OVI violation.
When there are different versions of a predicate offense, evidence supporting an acquitted version cannot be used to satisfy the predicate element of a compound offense.
A court cannot use evidence presented to support impairment-based OVI, on which the defendant was acquitted, to find that per se metabolite OVI proximately caused serious physical harm.

C. Holdings

Proximate cause is a separate and distinct element. The Court agrees with Balmert that aggravated vehicular assault under R.C. 2903.08(A)(1)(a) requires proof that serious physical harm was the “proximate result” of the predicate OVI offense and that this is an element beyond merely proving a technical OVI violation.
Sufficiency of evidence is satisfied. Applying a de novo sufficiency review, and viewing the evidence in the light most favorable to the State, a rational trier of fact could find beyond a reasonable doubt that striking a person on the road was a foreseeable consequence of driving with a prohibited concentration of marijuana metabolites, given the expert testimony about marijuana’s effects and the high metabolite concentration.
No strict liability, but foreseeability often satisfied. The Court stresses it is not transforming aggravated vehicular assault into strict liability upon a metabolite violation and acknowledges that unforeseeable harm could break the causal chain, but holds that in this case foreseeability was clearly present.
Second and third propositions dismissed. The Court dismisses the second and third propositions of law as improvidently accepted because Balmert did not raise those arguments in the court of appeals, and thus they were forfeited. The Court also notes that, even if reached, the record shows the trial judge used only the metabolite-based OVI as the predicate offense.

Result: The judgment of the Ninth District Court of Appeals affirming the aggravated vehicular assault conviction is affirmed.

D. The Partial Concurrence and Dissent

Justice Brunner agrees that proximate cause is a distinct element but dissents from the application of that requirement. She would vacate the aggravated vehicular assault conviction, reasoning that:

Marijuana metabolites are nonactive breakdown products that indicate only prior exposure, not impairment.
The State’s own drug-recognition expert testified that the metabolite number is “just a number” and “not like alcohol,” and impairment cannot be inferred solely from that number.
Given the acquittal on impairment-based OVI, there is no evidentiary link between the mere presence of metabolites and the causation of the accident.
Without evidence that the prohibited metabolite level affected Balmert’s driving at the time of the crash, proximate cause is not established.

III. Legal Framework and Precedents

A. Statutory Structure

1. Aggravated Vehicular Assault – R.C. 2903.08(A)(1)(a)

R.C. 2903.08(A)(1)(a) provides that:

No person, while operating or participating in the operation of a motor vehicle … shall cause serious physical harm to another person … [a]s the proximate result of committing a violation of division (A) of section 4511.19 of the Revised Code.

This provision requires the State to prove:

The defendant was operating or participating in the operation of a motor vehicle.
The defendant caused serious physical harm to another person.
The serious physical harm occurred as the proximate result of committing an OVI offense under R.C. 4511.19(A).

The “proximate result” language is central. The Court interprets “proximate result” as equivalent to “proximate cause,” importing established tort-style causation concepts into the criminal context.

2. OVI – R.C. 4511.19(A)

Aggravated vehicular assault under this subdivision hinges on a violation of R.C. 4511.19(A), which describes several different ways to commit OVI. Two subsections are important here:

R.C. 4511.19(A)(1)(a): Driving while “under the influence of alcohol, a drug of abuse, or a combination of them” (an impairment-based OVI, requiring proof that the substance affected the person’s driving ability).
R.C. 4511.19(A)(1)(j)(viii)(II): Driving with urine marijuana-metabolite concentration ≥ 35 ng/mL (a per se metabolite-based OVI, requiring only proof of the concentration, not of actual impairment).

In Balmert, the predicate offense for aggravated vehicular assault is the per se metabolite-based OVI under R.C. 4511.19(A)(1)(j)(viii)(II), not the impairment-based OVI under R.C. 4511.19(A)(1)(a), on which Balmert was acquitted.

B. Standard of Review – Sufficiency of the Evidence

The Court reiterates that sufficiency of the evidence is a question of law, reviewed de novo:

State v. Thompkins, 78 Ohio St.3d 380 (1997): Clarifies the legal sufficiency vs. weight-of-the-evidence distinction.
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus: Evidence is sufficient if, viewed in the light most favorable to the prosecution, it would permit any rational trier of fact to find the essential elements of the offense beyond a reasonable doubt.
State v. Dent, 2020-Ohio-6670, and State v. Groce, 2020-Ohio-6671: Reaffirm that sufficiency is reviewed de novo under the Jenks standard.

The Court applies this standard to determine whether the evidence of proximate causation, combined with the undisputed OVI per se violation, suffices to support the aggravated vehicular assault conviction.

C. Proximate Cause and Foreseeability

1. Cause in Fact vs. Proximate Cause

Cause in fact (“but for” causation): The harm would not have occurred but for the defendant’s conduct. The Court notes that cause in fact is not disputed: the trooper would not have been injured but for Balmert’s turning and striking her.
Proximate cause (legal cause): Concerns whether the defendant’s conduct is sufficiently connected to the harm to justify legal responsibility, considering limits on liability grounded in fairness and policy.

Key precedents:

Anderson v. St. Francis–St. George Hosp., Inc., 77 Ohio St.3d 82 (1996): Defines cause in fact using “but for” language.
Ackinson v. Anchor Packing Co., 120 Ohio St.3d 228, 2008-Ohio-5243: Describes proximate cause as legal causation.
Johnson v. Univ. Hosps. of Cleveland, 44 Ohio St.3d 49 (1989): Explains why the law limits liability to harms that are closely connected to the conduct: consequences extend theoretically to infinity, but only some are close enough to ground liability.

2. State v. Crawford and the Foreseeability Standard

The Court’s proximate-cause analysis leans heavily on State v. Crawford, 166 Ohio St.3d 349, 2022-Ohio-1509, which interpreted identical “proximate result” language in the involuntary manslaughter statute, R.C. 2903.04(A). That statute punishes causing the death of another “as a proximate result” of committing a felony.

In Crawford:

The defendant was convicted of weapons under disability and involuntary manslaughter, with the weapons-under-disability offense as the predicate felony.
The defendant argued that because his disability (a prior conviction) had nothing to do with the victim’s death, it could not serve as the predicate.
The Court rejected this, holding that the proper question is whether the death was a foreseeable consequence of violating the statute—i.e., possessing a firearm under disability, not the reason for disability.
The Court held that death by firearm is a foreseeable consequence of illegally possessing and using a firearm; thus, proximate cause was satisfied.

In Balmert, the Court imports Crawford’s logic to OVI-based aggravated vehicular assault: the key is whether injuring a person on the road is a foreseeable consequence of driving with a prohibited concentration of marijuana metabolites.

IV. The Court’s Legal Reasoning

A. Proximate Cause as a Separate and Distinct Element

The Court expressly accepts Balmert’s argument that:

“proximate cause is a separate and distinct element required for an aggravated-vehicular-assault conviction—one that the State was required to prove beyond merely establishing the predicate offense.” (¶ 9, 17, 24)

This is of real doctrinal significance. It rejects any interpretation under which showing (1) an OVI violation and (2) that the defendant caused serious harm would automatically suffice. The prosecution must prove that the harm occurred as the proximate result of the specific OVI violation alleged.

However, once that principle is stated, the subsequent analysis shows that the bar for proximate cause may, in practice, be relatively low when the general risk created by the predicate conduct closely matches the harm that occurred.

B. Applying Foreseeability to Metabolite-Based OVI

The Court frames the central question as:

“whether the harm of injuring a person on the road was a foreseeable consequence of driving while having a concentration of marijuana metabolites in excess of the legal limit, in violation of R.C. 4511.19(A)(1)(j)(viii)(II).” (¶ 15)

The majority’s analysis stitches together several pieces of evidence:

Statutory scheme: The legislature has selected a 35 ng/mL marijuana-metabolite threshold as the per se limit. Balmert’s level exceeded 200 ng/mL, nearly six times this limit.
Defendant’s use: Balmert testified he regularly used hemp products and had done so the morning of the accident.
Expert testimony: Two law-enforcement officers, certified as drug-recognition experts, testified that:
- Marijuana depresses reflexes and slows reaction time.
- Marijuana affects depth and space perception.
- Marijuana impairs concentration—effects especially important in complex traffic-control situations.
Field observations: Both officers believed, based on field sobriety testing and observations, that Balmert was under the influence of marijuana, notwithstanding his medical conditions.

On this record, the Court reasons that:

“a reasonable trier of fact could have found that Balmert striking C.G. with his car was a foreseeable consequence of—and therefore was proximately caused by—his marijuana (or hemp) use.” (¶ 17)

The key analytical move is this:

Because marijuana (as a category) is known to impair perception, reflexes, and concentration,
and because the statute criminalizes driving above a fixed metabolite threshold,
an accident in which a driver fails to avoid hitting a person directing traffic is considered a foreseeable manifestation of that risk, even if the court acquits on a separate impairment-based OVI count.

C. Guardrails: Proximate Cause vs. Strict Liability

The Court takes care to say that it is not rendering aggravated vehicular assault a strict-liability offense upon proof of a metabolite per se OVI:

“Our conclusion is not meant to construe aggravated vehicular assault as a strict-liability offense once it has been established that the defendant had a concentration of marijuana metabolites … [n]or does our conclusion foreclose the possibility that a defendant … could cause serious physical harm … in a way that is entirely unforeseeable, thus breaking the chain of proximate causation.” (¶ 18)

In other words, defendants may still argue in future cases that an extraordinary, unforeseeable event—something far outside the ordinary risk of impaired driving—intervened to cause harm, thereby breaking the causal chain.

D. The Effect of the Acquittal on Impairment-Based OVI

Balmert was acquitted of driving “under the influence of alcohol, a drug of abuse, or a combination of them” under R.C. 4511.19(A)(1)(a). He argued that this acquittal undermined the State’s claim that his marijuana use could foreseeably have caused the accident.

The Court squarely rejects that inference:

“An accident can be the foreseeable result of the effects of marijuana use on one's driving, even if a trier of fact, for whatever reason, does not think that the effects of that use satisfy the catch-all provision for driving ‘under the influence’ found in R.C. 4511.19(A)(1)(a).” (¶ 19)

Several points are implicit here:

Verdicts on separate counts may be logically inconsistent yet legally sustainable (a recognized feature of both jury verdicts and, in practice, bench verdicts).
The acquittal on the impairment-based count may reflect doubt about any number of elements (e.g., degree of influence, timing), not necessarily a finding that the drug had no effect.
Foreseeability of harm from marijuana-related impairment can be established through general expert testimony and circumstances, irrespective of the separate “under the influence” standard in R.C. 4511.19(A)(1)(a).

Thus, the impairment acquittal does not preclude a finding that marijuana-related driving risk contributed foreseeably to the accident.

E. Forfeiture and Dismissal of Propositions Two and Three

The Court dismisses the second and third propositions of law as improvidently accepted because Balmert did not raise the specific arguments in the appellate court. Citing State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 15, the Court emphasizes that issues not raised below are generally forfeited on further review.

Even so, the Court briefly addresses the record:

The trial judge expressly identified the per se metabolite OVI under R.C. 4511.19(A)(1)(j)(viii)(II) as the predicate for aggravated vehicular assault.
After acquitting on the impairment OVI count, the judge characterized impairment as a “moot point” because the illegal concentration of drugs made it unlawful for Balmert to drive, and he caused serious physical harm.

Regarding the Ninth District’s opinion, the Court notes that even if the appellate court improperly referenced impairment OVI, its bottom-line holding on sufficiency and proximate cause remains correct; the Supreme Court will not reverse a correct judgment simply because some reasoning may be flawed (State ex rel. McGrath v. Ohio Adult Parole Auth., 100 Ohio St.3d 72, 2003-Ohio-5062, ¶ 8).

V. The Partial Concurrence and Dissent (Brunner, J.)

A. Agreement on Legal Principles

Justice Brunner concurs in recognizing that:

Proximate cause is a distinct element in aggravated vehicular assault.
Foreseeability is the touchstone of proximate cause.

Her disagreement lies in the majority’s application of these principles to the evidentiary record.

B. The Science of Marijuana Metabolites

Justice Brunner emphasizes the distinction between:

THC (Δ9-THC): the active ingredient in marijuana that causes psychoactive effects and impairment; and
Marijuana metabolites: nonactive “breakdown products” of THC that remain in the body long after the active effects have dissipated.

She underlines several points drawn from testimony and cited materials:

The State’s DRE testified that a metabolite number is “just a number” and “not like alcohol where you can equate it to a certain number to show impairment”; impairment conclusions require observed behaviors plus the number.
The lab criminalist testified that the metabolites come from breakdown of the parent drug THC.
Citing State v. Whalen, 1st Dist. Hamilton No. C-120510, 2013-Ohio-1861, ¶ 16, she notes that THC itself “leaves the body relatively quickly,” while metabolites can persist for an extended time.
Quoting the National Highway Traffic Safety Administration (NHTSA), she notes that detection of THC metabolites in urine “only indicates prior exposure and cannot be correlated to drug impairment” and that metabolites can remain in urine “for an extended period after last use.”

Given this, she argues that the presence of marijuana metabolites at a high concentration:

Proves prior THC use, but
Does not prove impairment, contemporaneous drug effect, or any contribution to the accident without further evidence.

C. The Significance of the OVI Impairment Acquittal

Justice Brunner places considerable weight on the trial court’s acquittal on the impairment-based OVI charge:

The State’s experts opined that Balmert was under the influence of cannabis and unable to operate a vehicle safely.
Despite this, the trial judge rejected the under-the-influence charge, implying reasonable doubt that impairment was proven.
Thus, the record, in her view, does not support a finding that marijuana actually affected Balmert’s driving at the time of the crash.

Without proof of impairment or of any link between the prohibited metabolite level and specific driving errors, there is, for her, no basis to say that the over-the-limit offense proximately caused the harm.

D. Proximate Cause and Over-the-Limit Metabolites

Justice Brunner rejects what she sees as the majority’s bare conclusion that the accident was a foreseeable consequence of prior marijuana use:

She stresses that “we cannot presume that Balmert was impaired—or affected in any way—by the fact that he had a prohibited concentration of metabolite levels in his urine.”
The State bears the burden of proving that the over-the-limit condition contributed causally to the accident, not merely that it existed concurrently.
Given metabolite science and the court’s own finding of no impairment, the situation differs fundamentally from alcohol, where a per se blood-alcohol concentration is closely correlated with intoxication and driving risk.

Therefore, she would:

Reverse and vacate the aggravated vehicular assault conviction,
Leave in place the unchallenged per se metabolite OVI conviction, and
Decline to treat the metabolite-based per se offense as automatically sufficient to support aggravated vehicular assault whenever a traffic accident causing serious harm occurs.

E. Legislative Context

Justice Brunner also notes that, as of October 8, 2025, the Ohio Senate unanimously passed a bill (Am.Sub.S.B. No. 55, 136th General Assembly) that would remove marijuana metabolites from the list of substances that can support a per se over-the-limit-while-driving violation. She does not treat this as controlling, but as context indicating a legislative recognition of the scientific problems with metabolite-based per se OVI.

She concludes by pointing out that, had the General Assembly wanted aggravated vehicular assault to automatically follow from causing serious harm while per se over the metabolite limit, it could have omitted the “proximate result” requirement entirely. The inclusion of proximate cause signals a legislative expectation of a meaningful causal link, not mere temporal coincidence.

VI. Analysis and Commentary

A. Doctrinal Clarification: Proximate Cause as an Independent Element

The most enduring doctrinal contribution of Balmert is its explicit recognition that:

“A conviction for aggravated vehicular assault under R.C. 2903.08(A)(1)(a) requires that the physical harm suffered be the proximate result of a predicate offense.” (¶ 24)

This clarifies a question that may have been underexplored in practice: prosecutors cannot simply show (1) an OVI violation and (2) serious harm caused by driving. They must connect the risk created by the OVI conduct with the harm that occurred, using the foreseeability framework elaborated in Crawford.

That said, the majority’s application suggests that where the predicate conduct is inherently risky (e.g., intoxicated driving, gun possession under disability), proximate cause may often be found with relatively little additional factual development beyond:

Evidence of the predicate offense; and
Evidence that the type of harm that occurred (e.g., traffic collision, shooting) is the kind of harm that makes the predicate conduct dangerous.

B. Foreseeability and Marijuana Metabolites: A Tension

Balmert exposes a tension between:

The statutory design: Per se OVI based on metabolites is written as if metabolite levels are appropriate proxies for current drug-impaired driving risk.
The scientific reality, as reflected in the record: Metabolites may be uncorrelated with current impairment and may show only that the driver used marijuana some time in the past.

The majority sidesteps the full scientific complexity by focusing on the general risks of marijuana-impaired driving and on expert testimony describing those risks. But the dissent underscores that the specific evidence in this case—including a judicial finding against impairment and expert acknowledgment that metabolite figures alone do not equate to impairment—cuts the other way.

Practically, the decision appears to allow the following chain of inference:

The legislature declared that driving with ≥ 35 ng/mL of marijuana metabolites is unlawful because it is associated with marijuana use.
Marijuana use (in the abstract) is known to impair driving in ways that can cause accidents.
Therefore, when a driver with ≥ 35 ng/mL metabolites causes a typical traffic-accident-type injury, a trier of fact may infer that this harm is a foreseeable consequence of the metabolite-based offense, notwithstanding an acquittal on a separate impairment count.

From a doctrinal perspective, this places a heavy thumb on the scale in favor of finding foreseeability, even when the causal connection between metabolite levels and actual impairment is scientifically tenuous. That is the core of the dissent’s concern.

C. Evidentiary Implications: What Must the State Prove?

After Balmert, prosecutors in Ohio aggravated vehicular assault cases with a metabolite-based OVI predicate should, at a minimum, present:

Clear toxicology evidence establishing the per se violation (metabolite concentration) at the time of operation.
Expert testimony explaining:
- How marijuana generally affects driving (reaction time, perception, concentration).
- Why a driver with such a level would pose a heightened risk in the specific driving circumstances at issue (e.g., complex intersections, pedestrians, unusual traffic control conditions).
Evidence from the scene (e.g., field sobriety performance, traffic behavior, missed cues) that is at least consistent with impaired or degraded driving ability.

The presence of this type of evidence helped support the majority’s sufficiency finding, even though the trial court acquitted on the impairment-based OVI count. Defense counsel, in turn, will likely:

Vigorously attack the scientific basis for equating metabolite presence with impairment.
Highlight any acquittal or weak evidence on impairment-based OVI counts.
Emphasize alternative explanations (e.g., distraction, miscommunication, environmental factors) for the accident to undercut foreseeability.

D. Inconsistent Verdicts and Compound Offenses

Although the Court does not reach the merits of propositions two and three (due to forfeiture), Balmert implicitly tolerates:

A conviction for aggravated vehicular assault premised on a per se OVI; and
An acquittal on impairment-based OVI, even though much of the same impairment evidence informs both charges.

This aligns with longstanding doctrine that inconsistent verdicts do not necessarily invalidate convictions, but it leaves unresolved some nuanced questions:

To what extent may a court rely on evidence offered to prove an acquitted count (impairment OVI) when assessing proximate cause for a conviction on a different count (aggravated vehicular assault)?
Is there any constitutional or due-process limitation on such use of overlapping evidence?

Because these issues were forfeited and dismissed as improvidently accepted, they remain open for future litigation in cases where defendants properly preserve them on appeal.

E. Relationship to Legislative Reform

Justice Brunner’s reference to the Senate’s passage of a bill to remove marijuana metabolites from per se OVI law highlights a potential misalignment between:

Legislative policy as reflected in the current statute (treating metabolites as per se dangerous for driving), and
Emerging legislative and scientific consensus that such measures may be both overinclusive (penalizing unimpaired drivers) and underinclusive (failing to capture actual impairment in some users).

If such a reform ultimately becomes law, future cases may see:

Fewer aggravated vehicular assault prosecutions premised on metabolite-only OVI; and
Greater focus on impairment-based OVI, requiring proof that the defendant’s driving ability was adversely affected.

Balmert therefore sits at the intersection of current statutory text and a potentially shifting legal landscape; its core proximate-cause reasoning will likely remain relevant, but the specific metabolite-based context may recede as the law evolves.

VII. Key Concepts Explained (In Plain Terms)

A. Proximate Cause vs. Cause in Fact

Cause in fact: “But for” the defendant’s act, the harm would not have happened. Example: But for Balmert turning his car, the trooper would not have been hit.
Proximate (legal) cause: Even if an act is a cause in fact, the law only holds a person responsible if the harm is closely connected to the risk created by the act, in a way that was reasonably foreseeable.

In Balmert, everyone agrees that turning and hitting the trooper was a cause in fact of her injuries. The dispute concerns whether those injuries were a sufficiently foreseeable result of driving while over the marijuana-metabolite limit.

B. “Per Se” OVI vs. “Impairment” OVI

Impairment-based OVI (R.C. 4511.19(A)(1)(a)): The State must prove that the driver was under the influence—that is, that a substance actually affected the driver’s abilities.
Per se OVI (e.g., R.C. 4511.19(A)(1)(j)(viii)(II)): The State need only prove that the driver’s body sample (blood, breath, urine) had a prohibited concentration of a specified substance, regardless of demonstrable impairment.

In Balmert:

The trial court acquitted on the impairment OVI (no proof beyond a reasonable doubt that he was “under the influence”).
The court convicted on the per se OVI (clear lab evidence of excessive metabolites).
The aggravated vehicular assault conviction is predicated on the per se OVI.

C. Predicate Offense and Compound Offense

Predicate offense: The underlying crime that serves as a building block for another, more serious “compound” offense.
Compound offense: A crime that incorporates the commission of another offense plus additional elements (e.g., resulting in serious harm or death).

Here:

Predicate: Per se OVI based on marijuana metabolites, R.C. 4511.19(A)(1)(j)(viii)(II).
Compound offense: Aggravated vehicular assault, R.C. 2903.08(A)(1)(a), which requires that serious harm be the proximate result of committing the OVI predicate.

D. Foreseeability

“Foreseeability” is about whether a reasonable person, in the defendant’s position, should have anticipated that a certain type of harm could result from his or her conduct.

If the harm is of the same general type that makes the conduct dangerous, it is usually deemed foreseeable.
If the harm is bizarre, remote, or highly unusual, it may be considered unforeseeable and break the chain of proximate causation.

The majority views injuring a person on the road as a textbook example of the kind of harm that makes drug-affected driving dangerous, and thus as foreseeable. The dissent contends there is no sound basis to assume that Balmert’s driving was drug-affected at all, given the nature of metabolites and the acquittal on impairment.

E. Forfeiture and “Improvidently Accepted” Propositions

Forfeiture: When a party fails to raise an issue in the lower court, appellate courts often decline to consider it, absent plain error. Parties must generally “preserve” issues by timely raising them.
Improvidently accepted: The Supreme Court sometimes accepts propositions of law for review but later determines they were not properly before it (e.g., due to forfeiture) and dismisses them without deciding the merits.

In Balmert, propositions two and three—concerning the use of evidence from acquitted OVI variants—were dismissed as improvidently accepted because they had not been raised in the Ninth District.

VIII. Impact and Future Implications

A. For OVI-Based Aggravated Vehicular Assault and Homicide

Balmert will likely be cited for at least three key propositions:

Distinct proximate-cause element: Courts must analyze whether harm was the proximate result of the predicate OVI offense, not simply whether OVI and harm both occurred.
Foreseeability test: Harm is proximately caused when it is a foreseeable consequence of the predicate offense, applying the Crawford framework.
Compatibility with per se predicates: Even when the predicate offense is based on per se chemical thresholds rather than impairment, proximate cause may be satisfied by showing that the type of harm matches the type of risk that motivated the per se standard.

This structure will apply not only to aggravated vehicular assault, but also to analogous “proximate result” statutes, such as involuntary manslaughter under R.C. 2903.04(A), where the predicate offense may be weapons under disability, felony drug trafficking, or other inherently risky felonies.

B. Marijuana-Related Driving in a Changing Legal and Scientific Environment

Because Balmert specifically concerns marijuana metabolites, it will loom large in Ohio’s transitional period of marijuana regulation:

Until statutory reforms remove metabolites from per se OVI (if and when they do), prosecutors may continue to use metabolite-based OVI as a foundation for serious vehicular-assault charges.
Defendants will draw on the dissent and cited scientific authorities to argue that nonactive metabolites cannot fairly be linked to real-time impairment, and thus cannot reliably establish proximate cause without additional evidence.
Courts will increasingly be asked to grapple with the mismatch between older per se statutes and modern toxicology of cannabis, particularly in cases involving serious injury or death.

C. Appellate Practice and Preservation of Issues

Balmert also illustrates the importance of issue preservation. Counsel who wish to challenge:

The use of evidence from acquitted counts, or
The consistency of predicate-offense findings with compound-offense findings,

must raise these arguments at the court of appeals stage. Failure to do so may foreclose Supreme Court review, as happened with Balmert’s second and third propositions of law.

D. Bench Trials, Mixed Verdicts, and Fact-Finding

Finally, the case underscores that:

Bench trial judges, like juries, may issue verdicts that appear internally inconsistent but are nevertheless legally sustainable.
Appellate courts will generally not infer from an acquittal on one count that a specific factual finding (e.g., “no impairment of any kind”) was necessarily made, unless the record clearly reflects such a finding.
Factfinders are permitted to believe some parts and disbelieve other parts of a witness’s or expert’s testimony, leading to nuanced or mixed outcomes.

IX. Conclusion

State v. Balmert marks an important clarification in Ohio criminal law: aggravated vehicular assault under R.C. 2903.08(A)(1)(a) contains a distinct proximate-cause element, and that element is governed by a foreseeability-based standard, consistent with State v. Crawford. The State must show not merely that the defendant committed a qualifying OVI offense and caused serious harm, but that the harm was a foreseeable consequence of the risk created by that offense.

In applying this framework to a per se marijuana-metabolite OVI, the majority underscores the general dangers of marijuana-impaired driving and holds that striking a roadway worker is a foreseeable manifestation of that risk, despite an acquittal on impairment-based OVI. Justice Brunner’s partial dissent highlights the scientific and evidentiary difficulties of tying nonactive metabolites to actual impairment and, therefore, to proximate cause, especially when the trial court has rejected impairment.

Going forward, Balmert will shape how Ohio courts analyze causation in OVI-based aggravated vehicular assault and homicide cases, particularly where statutory per se thresholds are in tension with evolving science. It reaffirms the centrality of foreseeability in criminal proximate-cause analysis, while simultaneously revealing the practical challenges of applying that standard to complex, science-driven offenses like drug-impaired driving.