Are Ohio’s DUI/OVI Marijuana Laws Constitutional?

Issue 3 went up in smoke last week, so it’s still illegal to use marijuana in Ohio.  It’s also illegal to operate a vehicle under the influence of marijuana or with a prohibited level of marijuana metabolite in one’s urine.  The last article in this blog addressed the duration of marijuana’s effects and the duration of marijuana’s detectability.  The conclusion was marijuana effects last for two hours to five hours, but marijuana metabolites are detectable in urine for up to five weeks.  With that backdrop, this article discusses whether Ohio’s DUI/OVI marijuana laws are Constitutional.

Marijuana and gavel

The part of Ohio’s OVI law with the most significant Constitutional problem is the part which prohibits driving with marijuana metabolites in one’s urine.  Ohio Revised Code section 4511.19(A)(1)(j)(viii)(II) says no person shall operate a vehicle with a concentration of at least thirty-five nanograms of marijuana metabolite per milliliter of the person’s urine.  A person may be punished for violating this law even though the person’s ability to drive is not at all impaired.

One principle of Constitutional Law is a law should not punish a person based on the person’s status.  A case illustrating this principle is Robinson v. California.  In that case, the defendant was convicted of a California law which made it a crime to be addicted to a narcotic.  The United States Supreme Court held the law was Unconstitutional:  it violated the Eighth Amendment’s prohibition of ‘cruel and unusual punishment’.  The court made two relevant observations.  First, the status of ‘narcotic addiction’ could subject a defendant to repeated arrests.  Second, a defendant could be punished for being an addict in the state of California even though he did not possess or consume a narcotic in that state.

The reasoning of Robinson v. California applies to the Ohio law prohibiting operating a vehicle with marijuana metabolites in one’s urine.  First, if a person has 35 nanograms or more of marijuana metabolites in his or her urine, that person could be punished for OVI every time he operates a vehicle for up to five weeks.  Second, a person could ingest marijuana in a location where it’s legal and later be punished in Ohio for driving with marijuana metabolites in her urine.  Those multiple punishments could occur even though the marijuana was not impairing the person’s ability to drive.

No cases in Ohio have addressed whether this part of the Ohio OVI law is an unconstitutional punishment of status.  Although State v. Schulz and State v. Whalen discussed the Constitutionality of this law, those cases addressed different Constitutional principles:  whether the law is rationally related to a legitimate government interest and whether the law is vague/overbroad.

Although the rationale of Robinson v. California suggests this part of Ohio’s OVI law is unconstitutional, I do not expect a successful challenge in the immediate future.  As long as marijuana use is illegal in Ohio, prosecutors and judges are likely to fall back on the proposition ‘people aren’t allowed to smoke it in Ohio anyway’.  It would be best for Ohio DUI/OVI lawyers to wait and make the challenge if/when marijuana use is legalized in Ohio.  Then it may be this part of the law which goes up in smoke.