The ever-growing number of states which have legalized either medical marijuana or recreational marijuana has created a number of issues for law enforcement and the justice system. Chief among those issues is the challenge of enforcing laws against operating a vehicle under the influence of marijuana. In an effort to overcome this challenge, the Norwegian company Drauger developed the DrugTest 5000. This system uses a mouth swab, taken roadside, to help determine if a driver is under the influence of marijuana or other drugs. The DrugTest 5000 has been in use in Norway since 2015 and has seen growing use in the United States. This test, however, is probably not the solution for law enforcement’s problems.
Ohio and Pennsylvania are two states which still prosecute drivers for DUI / OVI marijuana, even if the marijuana metabolites in the driver’s system are not affecting the person’s ability to drive. The Philadelphia District Attorney’s office recently announced it will not prosecute cannabis DUIs unless the driver has amounts of psychoactive THC which affect driving. Ohio prosecutors should consider implementing this policy.
Two Types Of DUI/OVI Laws In Ohio
Ohio’s two general types of OVI are OVI ‘impaired’ and OVI ‘per se’. For a charge of OVI ‘impaired’, the prosecution must prove that, at the time of operating the vehicle, the driver was ‘under the influence’ of alcohol and/or drugs. ‘Under the influence’ means the alcohol and/or drugs “affected the nervous system, brain or muscles of the defendant so as to impair, to a noticeable degree, his ability to operate the vehicle”.
For a charge of OVI ‘per se’ the prosecution must prove that, at the time of operating the vehicle, the driver had a prohibited concentration of alcohol or drugs in his breath, blood or urine. The prohibited concentration of alcohol is .08%. The prohibited concentration of marijuana metabolite is 35 nanograms per milliliter of urine or 50 nanograms per milliliter of blood.
Although Ohio courtrooms may not seem as dramatic and intriguing as those on C.S.I., crime laboratory tests are regularly a part of Ohio criminal cases. In Ohio DUI / OVI cases, and in drug-related cases, crime lab technicians use scientific tests to identify drugs. The lab techs write reports about the analyses and sometimes testify at trial about the tests. A recent case in an Ohio appellate court discusses the detailed procedure for using crime lab reports in Ohio DUI / OVI and criminal trials.
The case is Kettering v. Maston. Maston was pulled over for a questionable marked lanes violation after leaving a known drug house. As one officer was writing a traffic ticket, another officer ran a drug dog around Maston’s vehicle. The drug dog alerted, and the officers searched Maston’s passenger compartment. The officers seized a container of pills which they suspected were controlled substances and charged Maston with Possessing Controlled Substances.
The officers sent the pills to the crime laboratory at the Ohio Bureau of Criminal Investigations (BCI). A laboratory technician analyzed the pills and wrote a report. The report identified the pills as Alprazolam (Xanax). The report was delivered to the prosecuting attorney.
After Tiger Woods’ recent DUI arrest, he issued a statement in which he said, “I want the public to know alcohol was not involved. What happened was an unexpected reaction to prescribed medications.” Prescription medications, as well as non-prescribed drugs, account for an increasing number of DUI/OVI cases in Ohio and throughout the United States. Tiger’s situation very publicly spotlights the complicated problem of drugged driving.
The Effects Of An Unexpected Reaction
At about 3:00 am on Memorial Day, a police officer found Tiger asleep at the wheel of his Mercedes. The car was parked, partially on the road, and the engine was running. The officer approached Tiger and woke him. The officer noticed Tiger was sluggish and observed Tiger’s speech was slow and slurred. When asked where he was going, Tiger said he was coming from L.A. and going to Orange County. He was actually in Jupiter, Florida.
Bad Facts Make Bad Law
If a police officer says a driver was under the influence of a drug, there is no need for testimony from an expert regarding whether the drug actually impairs driving. That is, essentially, the conclusion of the Ohio Supreme Court’s decision in State v. Richardson. There is a saying among lawyers: “bad facts make bad law”. The precedent created by this case may qualify as ‘bad law’, and the circumstances of the case definitely qualifiy as ‘bad facts’.
These are the facts. The defendant rear-ended another car and had a child with him in his truck. He then nudged the other car repeatedly because he left his truck in gear. His speech was slurred, he slid out of the truck, he dropped all his cards on the ground, he singed his hair trying to light a cigarette, he ‘failed’ all the field sobriety tests, and he refused a blood test. The defendant told the officer he was on pain medication and took hydrocodone (at some undetermined time).
The defendant was charged with Child Endangering and felony OVI. This was his second felony OVI. That means, before this incident, he already had four OVI convictions in the last six years or six OVI convictions in the last 20 years. The defendant was convicted, and the case ultimately was heard by the Ohio Supreme Court.
The only presumption permitted in an Ohio DUI/OVI trial is the presumption the defendant is not guilty. In a case alleging drugged driving, the prosecution must prove the defendant ingested a drug, and the prosecution must prove the defendant’s ability to drive was impaired. Finally, as a recent case illustrates, the prosecution must prove causation: the impaired driving ability was caused by ingesting the drug.
The recent case is State v. Hammond. A law enforcement officer stopped Hammond for speeding and observed Hammond’s pupils were constricted. Based on his training in Advanced Roadside Impaired Driving Enforcement (ARIDE), the officer suspected Hammond may be under the influence. The officer administered field sobriety tests, and those tests reportedly revealed “clues” of intoxication. Hammond was 70 years old and walked with a cane. The officer arrested Hammond for OVI and had Hammond submit a urine sample. The officer charged Hammond with OVI, and Hammond entered a plea of Not Guilty.
At Hammond’s trial, the prosecution introduced the results of Hammond’s urine test. The test showed the presence of N-Desmethyldiazepam, Oxazepam, and Temazepam. The prosecution did not introduce expert testimony to describe the side effects of those drugs, but the officer testified in a conclusory fashion those drugs impaired Hammond’s ability to operate a vehicle.
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.
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.
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.
Next week, Ohioans will vote on Issue 3: a state constitutional amendment to legalize marijuana for medicinal and personal use*. If marijuana use is legalized in Ohio, more drivers will face charges of operating a vehicle under the influence of marijuana. Ohio’s OVI-marijuana laws raise many questions: How long does a marijuana high last? Does marijuana impair driving ability? Do blood and urine test results correlate with impaired driving ability? Are Ohio’s OVI-marijuana laws Constitutional? This article addresses the first question by discussing the duration of marijuana effects.
The psychoactive ingredient in marijuana is THC (tetrahydrocannabinol). THC is what makes a person ‘high’. Whether smoked or eaten, when THC enters the body, it is broken down (metabolized) quickly, either in lungs or stomach. When this metabolism occurs, metabolites are produced. A metabolite is any substance produced during metabolism: what remains after a drug is ‘broken down’.
As marijuana is metabolized when it enters the body, it is laughable that Ohio law prohibits operating a vehicle with a prohibited concentration of “marijuana”. There will never be Ohio OVI cases with blood or urine tests showing a concentration of “marijuana” because blood and urine tests do not identify or measure “marijuana”. Instead, they identify and measure THC metabolites.
It won’t win a Pulitzer Prize, it will not be mentioned with the New York Times best sellers, and it will not be at the top of readers’ ‘wish lists’. In fact, most people may not find it very interesting. If you are charged with a DUI/OVI in Ohio, however, this book suddenly becomes a must-read. I’m talking about the new book: I Was Charged With DUI/OVI, Now What?!
I wrote the book to answer the questions most commonly asked by people charged with OVI. After answering those questions for 17 years, I recently came to the realization there was not a published book designed for individuals charged with OVI in Ohio. I thought it would be helpful to create a book which explains ‘what you need to know before going to court and before hiring an attorney for DUI/OVI in Ohio‘.
The book, published a couple weeks ago, is divided into four parts. The first part reveals what prosecutors need to prove for a person to be found guilty of OVI and outlines the potential consequences of an OVI conviction. The second part addresses the evidence used in OVI cases, including field sobriety tests and blood/breath/urine tests. The third part discusses the court process and its various stages. The fourth part addresses how to find a good OVI lawyer.