We’ve used this space in the past to discuss issues with Ohio’s approach to DUI (called ‘OVI’ in Ohio) cases involving marijuana. The rising prevalence of marijuana OVIs following Ohio’s legalization of medical marijuana has shown Ohio’s OVI laws are woefully out-of-date to deal with these issues. A recent bill in the Ohio Senate seeks to update the way the law treats marijuana OVIs. This bill, if passed, would have a profound impact on the way marijuana OVI cases are charged, handled by courts, and defended by OVI defense attorneys.
As the law currently stands, Ohio treats marijuana OVIs substantially the same as alcohol OVIs. Most people are aware the ‘legal limit’ for alcohol is .08 on a breath test. If someone submits to a breath test following an OVI arrest and the result is at or above that amount, they are considered to be ‘per se’ under the influence, meaning the state does not need to prove they were impaired, just that they were ‘over the limit’.
Less commonly known, however, is that Ohio has a similar ‘legal limit’ for marijuana. The limit is different depending on whether it is THC (the psychoactive ingredient in marijuana), a metabolite of THC (a biproduct your body creates as it breaks down the THC), or a combination of those with alcohol. These levels are measured by a urine or blood test. If a driver submits to a test, and their level(s) come back over the limit, they are considered to be ‘per se’ under the influence, just like a driver who tests at or over .08 for alcohol.
This leads to the biggest issue with Ohio’s approach to marijuana OVI/DUIs: while the law treats marijuana like alcohol, the human body does not. First, the level of marijuana in somebody’s body does not correlate to their level of impairment the same way that alcohol does. With alcohol, a person is most impaired when the level of alcohol in their system is the highest. With marijuana, however, the highest level of impairment does not occur when the THC level is at its highest. This makes it very difficult, if not impossible, to have a meaningful ‘legal limit’ for marijuana OVIs.
Second, the presence of marijuana metabolites has no bearing on impairment. In fact, due to the way the body metabolizes marijuana, those metabolites can be found in the human body in levels above the legal limit for over a month after a person’s last marijuana use. This creates a situation where the law would consider someone ‘per se’ impaired based on the level of THC metabolites in their body, even though they hadn’t ingested any marijuana for weeks before operating a vehicle.
All of this combines to create a system where people who are not impaired in any way are none the less charged and convicted of OVI because their blood or urine test showed a concentration of THC or THC metabolites above the ‘legal limit’ and they were unable to argue against that determination in court.
Senate Bill 26 seeks to remedy this situation by making two major changes to Ohio law. First, the bill would limit testing to THC itself and remove the ability to charge a driver based on the level of marijuana metabolites in their body. Second, it would change what happens in court when somebody tests over the legal limit for THC. Rather than considering a driver ‘per se’ impaired because they tested ‘over the limit’, the proposed changes would create a rebuttable inference the driver was impaired. This means that, if a driver tests ‘over the limit’ in a marijuana OVI case, the driver would be able to present evidence showing that they weren’t actually impaired by the marijuana.
These changes will hopefully greatly reduce the number of innocent people charged with, and convicted of, OVI based on an outdated understanding of marijuana’s effects on the human body. While this bill still has a long road to travel before becoming law, its passage would be an encouraging step toward correcting the underlying issues in Ohio’s marijuana OVI laws.