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.
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.