Ohio legalized marijuana, but the OVI laws never changed to match. If you use marijuana and drive, that gap is where the legal risk lives.
While both medical and recreational marijuana are now legal in Ohio, the state's DUI/OVI laws have not changed. Even though marijuana use is legal, individuals can still be charged with an OVI if (a) a police officer suspects impairment or (b) a drug test indicates they exceed the legal THC limit.
It's important to note that drug tests typically measure THC metabolites, which can linger in a person's system for weeks after use. These metabolites do not necessarily reflect whether the individual is impaired or experiencing effects from marijuana at the time of driving.
Drug OVI charges can be contested and won. To effectively challenge these charges, it is essential to hire an attorney who focuses on OVI law, particularly drug-related cases, and who can identify weaknesses in the state's argument.
While you may not feel impaired from marijuana, you can still be charged with an OVI if you test over the state's limit for THC (tetrahydrocannabinol). Ohio recognizes these as per se OVIs. A per se OVI occurs when a person is operating a vehicle, the police have probable cause to arrest for an OVI, and a chemical test (by blood or urine) shows a THC concentration over the legal limit. The concern is the gap between the standards: to arrest you and require that test, an officer needs only probable cause to believe you were impaired, which is a much lower standard than the proof beyond a reasonable doubt required to convict. Once the test comes back over the per se limit, the state can obtain a conviction without ever having to prove that you were actually impaired.
Another issue is that a drug test for marijuana may detect either THC itself or a THC metabolite. While THC is not detectable for a lengthy time after consumption, a THC metabolite may be present in blood samples for days and in urine samples for weeks. Metabolites are byproducts of marijuana that have been broken down in the person’s system. The metabolite most commonly tested for is THC-COOH, known as Carboxy THC, which may remain in a person’s system for weeks after use.
The result is this: A person may have legally used medical marijuana a week or more before driving, but if the police can demonstrate that they had a valid reason to initiate a traffic stop and probable cause to believe the person was impaired, a drug test might only show that the person had used marijuana in the past weeks. Consequently, the person might still be convicted of an OVI. An experienced OVI attorney is essential to challenge the stop, the arrest, and the drug test to protect against this.
Revised Code Sections 4511.19(A)(1)(j)(vii) and (viii) establish the per se limits for marijuana. There are limits for marijuana alone, marijuana metabolites alone, and marijuana metabolites if the person is also under the influence of alcohol or a drug of abuse. These limits vary depending on whether they are detected in a blood test or a urine test.
Ohio law offers specific defenses to per se drug charges for individuals using drugs in accordance with a valid prescription. However, these defenses do not extend to those who use medical marijuana, as medical marijuana cards are not recognized as valid prescriptions. Consequently, the legal use of medical marijuana does not serve as a defense against OVI charges. This limitation remains in effect despite the legalization of recreational marijuana.
To support their case and to justify their decision to arrest and test, police may report observing any of the following:
An experienced OVI attorney can defend against marijuana OVIs. These defenses typically focus on:
The evolving laws surrounding marijuana raise important questions about existing case law related to reasonable suspicion for expanding the scope of stops, searches, and probable cause for arrests. Previously, marijuana was illegal in all circumstances, which allowed police greater discretion. However, with its legalization in many contexts, law enforcement may now face increased scrutiny.
We understand how to question the observation of clues, assess their significance, identify unobserved clues, and demonstrate that the police lacked reasonable suspicion to extend the traffic stop and probable cause for arrest.
