Drive High – Get A DUI

In January, Colorado became the first state to legalize recreational marijuana. In March, Colorado became the first state to televise entertaining public service announcements about the danger of driving under the influence of marijuana. The commercials are part of the Colorado Department of Transportation’s new campaign: “Drive High, Get A DUI“. Although Colorado is one of only two states to legalize recreational marijuana, it is not the only state to criminalize operation of a vehicle under the influence of marijuana. Contrasting Colorado’s handling of DUI marijuana with that of Ohio illustrates the deficiencies in Ohio’s approach.

In both states, the law makes it illegal to drive a vehicle under the influence of marijuana. Both states have a ‘limit’ of five nanograms of marijuana metabolite per milliliter of blood. Sounds the same, right? Not exactly. Ohio’s laws are different in at least three ways.

First, the states are measuring different stuff. Colorado measures active THC, the constituent of the cannabis plant that has psychoactive side effects. Ohio allows for measurement of any metabolite, and crime labs regularly measure an inactive metabolite which has no psychoactive effects.

Second, Ohio tests urine, while Colorado only tests blood. Ohio law makes it illegal to drive with 15 nanograms or more of marijuana metabolite in one’s urine. While THC in blood may affect the central nervous system, marijuana metabolites in urine are not affecting anything; they are being excreted. Marijuana metabolites may be found in urine for several weeks, even though any psychoactive effect is only experienced for a few hours.

Third, Ohio law deprives the accused of an ability to present a defense. In Colorado, if a driver has a THC level of five nanograms or more, there is a presumption the driver is under the influence. The driver then has the ability to rebut that presumption with evidence his or her driving ability was not impaired. Ohio has the same presumption at that level, but if the concentration of marijuana metabolite in a driver’s urine exceeds 35 nanograms, the driver is guilty of OVI, even if his or her driving ability was not impaired. If a driver smoked pot a week ago and still has more than 35 nanograms in his urine when he drives today, he is guilty of OVI.

Ohio is playing pretend. Ohio is pretending to punish people for operating a vehicle under the influence when really we are punishing people for smoking pot. It’s fine to punish people for smoking pot because it’s illegal (whether it should be legal is an entirely separate issue, and I’m not expressing an opinion on that issue). The problem, however, is smoking marijuana is punishable by a fine of $150, no jail time, and no probation. OVI is punishable by a fine of $1,075, six months in jail, and five years of probation. When a driver is convicted of OVI marijuana, she is being punished for OVI when the real crime may simply be marijuana use.

Ohio should stop pretending. If a person is found driving with marijuana metabolite in their urine, they should not be convicted of OVI. They could be charged with marijuana use – subject to the defense they smoked it in Colorado! Ohio should measure THC rather than an inactive metabolite, measure it only in blood, and allow the defendant to present evidence regarding whether the marijuana actually impaired the defendant’s ability to drive. Until these changes are made, Ohio could televise its own public service announcements: “Guilty For Smoking Pot – Impaired Driving Or Not”.