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.
The timing was not right to challenge the constitutionality of Ohio’s OVI marijuana ‘per se’ law. As I said in the previous blog article and seminar presentations, it would be best to wait until marijuana use is legal in Ohio. The Court in Topolosky was not persuaded by “the defendant’s various arguments on appeal regarding the potential legalization of marijuana in Ohio and recent decriminalization in numerous other states,” commenting, “Other state’s legalization does not influence our reasoning in this case.” Timing is everything.
To successfully challenge this law, a DUI/OVI lawyer should use an expert witness. The defendant in Topolosky made arguments regarding the pharmacokinetics of THC. Although the defendant’s assertions were true, they were unpersuasive without expert testimony.
In one part of the opinion, the Court of Appeals stated, “Topolosky did not present expert testimony at the hearing regarding the relationship between metabolite levels, impairment, time lapse in the presence of metabolites after use, and the degree of variation between individuals in these factors.” In another part of the opinion, the Court opined, “Topolosky has presented no expert testimony to rebut the legislature’s articulated and supported conclusion that marijuana use results in impaired driving and metabolites reflect an impairing level of marijuana use by the person testing at or above the statutory threshold.”
The lack of an expert witness, the poor timing, and the ‘argument destined to fail’ led to the Court of Appeals upholding Ohio’s OVI marijuana ‘per se’ law. I and other Ohio DUI/OVI lawyers conclude the law is unconstitutional. For Ohio courts to share that conclusion, the challenge cannot be half-baked: it needs to be made at a good time, using a good argument, and using a good expert witness.