Should Ohio Use Roadside Drug Test For Marijuana DUI / OVI?

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.

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Specific Problems With The Roadside Marijauana Test
While many hope the DrugTest 5000 will be to drugged driving what a breath test is to drunk driving, there are reasons to be skeptical. The first is the DrugTest 5000 can only detect the presence of drugs in a sample, not the amount. This means the DrugTest 5000 operates like a breath testing machine that can’t differentiate between a driver who had one beer and a driver who had 12.

The second reason to be skeptical is found in a 2018 joint study between the Oslo University Hospital and the Norwegian Mobile Police Service. The researchers found the DrugTest 5000 isn’t able to accurately identify drugs in a driver’s saliva. Over the course of the study, the DrugTest 5000 was found to have a false positive result for THC 14.5% of the time and a false negative result 13.4% of the time.

Additional Problems With Enforcing Marijuana OVI
To this point, there hasn’t been a reliable method to determine if a motorist’s driving ability is impaired by marijuana. Many police departments rely on the same field sobriety tests used to determine alcohol impairment, but those tests do not accurately predict marijuana impairment. Even the so-called “Drug Recognition Experts” cannot effectively identify drivers impaired by marijuana.

The problem is Ohio OVI law and Ohio law enforcement agencies pretend marijuana is like alcohol when it really isn’t. The body processes alcohol and THC (the psychoactive compound in marijuana) very differently. Alcohol is absorbed and metabolized by the body in a predictable manner, and a person’s level of impairment corresponds to their blood alcohol content (BAC). As a person’s BAC rises, their level of intoxication increases.

THC, on the other hand, is metabolized by the body at an unpredictable rate, and a person’s level of impairment does not correspond to their blood THC content. The peak THC level may occur before a person is even feeling the effects. More troubling: the effects of THC last only 60 to 180 minutes, but THC will be found in blood for up to 12 hours after smoking (a blood test in Ohio may be done up to three hours after operation). Compounding this problem is that it is essentially impossible to determine the THC concentration at the time of driving by measuring THC later (retrograde extrapolation).

Testing For THC Metabolites Is Not The Answer
Law enforcement agencies in Ohio attempt to remedy the problem by testing for THC metabolites: the compounds remaining when THC is broken-down by the body. This is even more troubling than measuring THC. The metabolites of THC in blood or urine bear absolutely no relation to impaired driving ability. Although the effects of THC only last up to three hours, the metabolites can be found in the body up to a month after marijuana consumption. Nevertheless, Ohio has a ‘per se’ law for marijuana metabolites which is similar to the .08 ‘limit’ for alcohol. By treating marijuana like alcohol, Ohio has created absurd marijuana OVI laws.

Enforcement of OVI marijuana laws will only become more common as more states ease restrictions on marijuana use. Legislatures, police departments, and courts need to adjust to the new reality of marijuana use. Marijuana OVI ‘per se’ laws and the DrugTest 5000 are not effective responses to this reality. If you are charged with a marijuana OVI, it is important to seek representation from Ohio DUI/OVI attorneys who keep up to date with not just the changing legal landscape, but also with changing technology.