Articles Tagged with Marijuana

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.

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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.

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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.

Pizza half baked

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.

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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.

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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.

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