Ohio Prosecutes DUI/OVI Marijuana Even If Driving Isn’t Impaired

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.

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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.

The Rationale For OVI ‘Per Se’ Laws
The rationale behind ‘per se’ laws is a person driving with a prohibited concentration of alcohol and/or drugs in their system is deemed to be ‘under the influence’ because that level of alcohol and/or drugs will impair driving ability. For alcohol, there is some research to support the conclusion that a person at or above .08% will have impaired driving ability (although that conclusion does not account for individual variabilities such as alcohol tolerance).

For marijuana, the rationale for ‘per se’ laws does not apply. First, there is disagreement among the scientific community regarding what amount of marijuana impairs a person’s driving ability. Second, the way Ohio does testing, marijuana metabolites may be detected long after the drug’s psychoactive effects have ceased.

Marijuana Testing And Ohio OVI Law
The psychoactive ingredient in marijuana is THC (tetrahydrocannabinol). The effects of THC last for about two to five hours. When THC enters the body, it is broken-down into metabolites. One of the metabolites, Hydroxy THC, is an active metabolite and is detectable for about three hours. Another metabolite, Carboxy THC, is an inactive metabolite and is detectable for up to five weeks.

Ohio law does not distinguish between these two types of marijuana metabolites. The law simply makes it illegal to operate a vehicle with a prohibited concentration of “marijuana metabolite”. This means a person may be convicted of OVI in Ohio for up to five weeks after ingesting marijuana, even though that marijuana stopped affecting the person’s driving a few hours after ingestion. Although this law makes no sense, it is still on the books, and I regularly represent clients charged with OVI for having Carboxy THC in their urine or blood.

Addressing A Senseless Law
It is rumored the Ohio legislature may revise Ohio OVI law and eliminate the ‘per se’ charge for marijuana metabolites. In the meantime, Ohio prosecutors should implement a policy like Philadelphia’s to not prosecute drivers for OVI ‘per se’ based on tests showing only Carboxy THC. The intricacies of marijuana OVI law emphasizes the importance of hiring Ohio DUI/OVI lawyers who have experience dealing with these issues.