Columbus OVI/DUI Attorney Blog
Delta-8 THC products are widely available in Ohio. You can’t walk into an Ohio gas station without seeing edibles and vapes containing the drug. The Ohio legislature has introduced bills to regulate Delta-8 THC products, but they are currently unregulated. As Delta-8 THC is mildly psychoactive, the question is whether a person can be convicted of DUI (called ‘OVI’ in Ohio) based on using Delta-8 THC.
Marijuana, Hemp, THC, and CBD
In the world of botany, the plant Cannabis sativa has at least 13 varieties. In the legal world, where we create our own definitions, there are two varieties: hemp and marijuana. According to federal and state law, hemp contains less than 0.3 percent THC, and marijuana contains 0.3 percent THC or more.
Marijuana is a psychoactive (aka psychotropic) drug: one which affects the brain/mind to produce changes in perception, cognition, mood and emotion. The psychoactive compound in marijuana is commonly referred to as ‘THC’ but is, more precisely, Delta-9 THC (Delta-9-tetrahydrocannabinol). Under federal law, marijuana is illegal. Some states, like Ohio, ignore federal law and make marijuana legal for medicinal and recreational purposes.
Hemp is used to make many products, including CBD (cannabidiol). CBD has a molecular structure which is slightly different than THC and is considered not psychoactive. Under federal law and Ohio law, hemp and CBD are legal.
Delta-8 THC (Delta-8-tetrahydrocannabinol) is one of the compounds in the Cannabis sativa plant. Delta-8 THC has a molecular structure which is slightly different than Delta-9 THC and is considered mildly psychoactive. It is sometimes referred to as ‘diet weed’. Delta-8 THC can be made synthetically by altering molecules of CBD. Under federal law and Ohio law, Delta-8 THC is currently legal.
Delta-8 THC and Ohio OVI Law
Ohio has two general types of OVI laws: OVI ‘impaired’ and OVI ‘per se’.
Ohio’s OVI ‘impaired’ law makes it illegal to operate a vehicle under the influence of a ‘drug of abuse’. According to Ohio Revised Code section 4506.01, a ‘drug of abuse’ is any controlled substance, dangerous drug, harmful intoxicant, or over-the-counter medication that, when taken in quantities exceeding the recommended dosage, can result in impairment of judgment or reflexes. Delta-8 THC is not a controlled substance, dangerous drug, harmful intoxicant, or over-the-counter medication. Therefore, it seems a driver could not be convicted of OVI ‘impaired’ for operating a vehicle under the influence of Delta-8 THC.
Ohio’s OVI ‘per se’ law makes it illegal for a person to operate a vehicle with a prohibited concentration of marijuana in the person’s blood or urine. Marijuana will never be found in a person’s blood or urine, and hemp products are excluded from Ohio’s statutory definition of ‘marihuana’, so this part of the OVI ‘per se’ law will never be enforced
Ohio’s OVI ‘per se’ law also makes it illegal for a person to operate a vehicle with a prohibited concentration of marijuana metabolite in the person’s blood or urine. If the concentration of Delta-8 THC metabolite in a driver’s blood or urine meets or exceeds the prohibited concentration, can that person be convicted of OVI ‘per se’? It depends on whether the Delta-8 metabolite is considered a ‘marijuana metabolite’.
A prosecutor may argue the Delta-8 metabolite came from a marijuana plant. However, it seems unlikely the prosecution could prove the Delta-8 THC came from marijuana and not hemp. Therefore, it is unlikely a person could be convicted of OVI ‘per se’ based on using a product containing Delta-8 THC.
Laws Change
At this time, a driver likely cannot be convicted of OVI in Ohio based on the driver using Delta-8 THC. This is a bit of a gray area in Ohio OVI law. In the future, the state legislature could change Ohio law to categorize Delta-8 THC as a ‘drug of abuse’ or add a prohibited concentration of Delta-8 THC to the OVI ‘per se’ law. If either of those changes were to occur, a driver could be convicted of OVI based on Delta-8 THC.