An appellate case decided earlier this month illustrates how not to attack the constitutionality of a law. In the case of State v. Topolosky, the Tenth District Court of Appeals upheld Ohio’s DUI/OVI marijuana law. Coincidentally, just before the case was published, I wrote about this topic in this blog, and I spoke about this topic at two seminars. The defendant in Topolosky did essentially the opposite of what I suggested in the blog and presentations. The defendant used an argument destined to fail…with bad timing…without an expert witness.
The argument destined to fail was the argument that the law violates the defendant’s rights to due process and equal protection. This argument was destined to fail because, unless a suspect classification or fundamental right is involved, the law is judged using the ‘rational basis test’. With this test, the law will only be considered unconstitutional if the law has no rational relationship to a legitimate government interest.
When courts apply the rational basis test, it is incredibly rare for a law to be held unconstitutional. Using the rational basis test, another Ohio appellate court had already upheld the OVI marijuana ‘per se’ law in State v. Schulz. It is no surprise the Court of Appeals in Topolosky upheld the same law using the same rationale.