Columbus OVI/DUI Attorney Blog
A few days ago, legal recreational marijuana sales began in Ohio. At some dispensaries, there has been an overwhelming response, with customers standing in line to buy marijuana. As sales can only be made to people who are 21 and older, we can presume most of the recreational marijuana users are also car drivers. Those drivers should be aware of Ohio’s laws regarding marijuana and DUI (called ‘OVI’ in Ohio).
Ohio Laws for Marijuana OVI
In Ohio, there are three general categories olaws which prohibit marijuana OVI (Operating a Vehicle under the Influence). The first category is OVI ‘impaired’. That law makes it illegal for a person to operate a vehicle while under the influence of a drug of abuse (including marijuana). The second category is OVI ‘per se’. That law makes it illegal for a person to operate a vehicle while the person has a prohibited concentration of marijuana or marijuana metabolite in the person’s blood or urine (even if the person is not under the influence). The third category is a combination of the first two. That law makes it illegal for a person to operate a vehicle while under the influence and having a (lower) prohibited concentration of marijuana or marijuana metabolite in their blood or urine.
Drivers Should Beware of Marijuana OVI ‘Per Se’
Even if a marijuana user is not under the influence while operating a vehicle, that person could be prosecuted for OVI ‘per se’. Ohio law does not specify which marijuana metabolites are prohibited. When Ohio crime labs test urine for marijuana metabolites, they measure the concentration of Carboxy THC. Carboxy THC is detectable in urine for up to five weeks. For a person who regularly smokes marijuana, the level of Carboxy THC in their urine will almost certainly be ‘over the limit’, even if they do not use marijuana on the day they are tested.
Here is how it can play out: An officer stops a driver for a minor traffic violation and smells the odor of marijuana coming from the vehicle. The officer administers field sobriety tests and observes ‘clues’ on the tests. The officer asks the driver to submit a urine sample, and the driver does so. The urine sample is tested by a crime lab, and the lab reports to an officer or prosecutor the level of Carboxy THC is ‘over the limit’. The driver is prosecuted for OVI ‘per se’.
The Problems with Ohio’s Marijuana OVI ‘Per Se’ Laws
One problem with Ohio’s OVI ‘per se’ law is there is no agreement in the forensic science community regarding the level at which a person is under the influence of marijuana. The United States Department of Justice commissioned a study which concluded, “THC levels in biofluid were not reliable indicators of marijuana intoxication”. Ohio’s prohibited concentrations have little to no basis in science and are therefore not clearly associated with preventing and punishing the act of driving under the influence.
The second problem is a driver can be convicted of OVI even if the driver was not under the influence when operating the vehicle. Such a driver is effectively being punished for the status of having marijuana metabolites in their urine. United States Supreme Court cases such as Robinson v. California and Powell v. Texas state it is unconstitutional to criminalize status.
Although there are problems with Ohio’s marijuana OVI laws, those laws are enforced. We can expect increased enforcement with the newly legal sales of recreational marijuana. Ohio drivers who use marijuana should be aware of the state’s laws regarding marijuana OVI. If a driver is charged with OVI based on marijuana use, the driver should seek representation by a lawyer with expertise in marijuana OVI.