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Medical Marijuana: OVI Trap?

The legality of marijuana is expanding in Ohio. Medical marijuana has come to Ohio, with dispensaries across the state now providing cannabis products for use by those on the medical marijuana registry. The new law has caused some confusion about the legality of marijuana use, especially when it comes to driving.

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Breaking:  Cincinnati City Council votes to decriminalize pot use.  OVI laws remains the same

Marijuana OVI Charge – A Trap?

Marijuana, like alcohol, is a mind-altering substance that may affect a person’s ability to drive. Under state law, you are prohibited from driving when your blood alcohol content exceeds a concentration of 0.08. There is also a similar limit for driving while consuming marijuana, and failure to comply with the law may result in a charge of Operating a Vehicle while Intoxicated (OVI), just as with alcohol.

While alcohol tests are typically administered via breathalyzer, tests for marijuana usually take the form of urine or blood tests. Drivers must not have more than 35 nanograms of marijuana metabolites per milliliter of urine, or 50 nanograms of metabolites per milliliter of blood. A nanogram is one billionth of a gram, so those limits are very low. Amounts in blood or urine found higher than those limits will result in an OVI charge for Ohio drivers.

The problem with applying alcohol-type test for marijuana as is that the substances are not the same, they are not metabolized in the body the same way, and they do not correlate to person’s level of impairment in the same way. Alcohol levels found in the breath or blood do usually correlate directly to impairment levels (for most people, most of the time, though not always).

How Can You Be Charged With Marijuana OVI?

A marijuana OVI charge usually stems from a traffic stop where the officer has observed some sort of traffic violation: violating marked lanes, running a stop sign, speeding, not using a proper turn signal, etc. The officer then can use the traffic violation as evidence of impairment, as well as any other evidence he/she finds in the course of the traffic stop.

In addition to traffic stops for general traffic violations, you may be stopped at an OVI checkpoint or you may be stopped for an equipment violation, like a broken tail light or headlight.

If the officer then sees or smells marijuana, or if the driver admits to using marijuana, these are all additional points of evidence that can be used to land you an OVI charge.

If, based on behaviors, odors, and presence of marijuana, an officer suspects impairment, the driver will likely be subjected to a drug test of blood or urine. These test results are not returned on the spot, but may be available at your first Court hearing.

Are Marijuana OVI Tests Fair?

Legislators, law enforcement, and the general public can generally agree that a person who is actively “high” on marijuana should not be driving. But many argue that the current tests for marijuana in your system are not fair. You can have amounts in your system making you legally “impaired” for driving, even if you do not feel or appear to be impaired in any way.

Are Drivers Impaired When They Used Marijuana Several Days Ago?

For marijuana, OVI tests look for marijuana or marijuana metabolite. Metabolites are byproducts of marijuana that can remain in your system for some time, days or even weeks, after you have consumed the drug. Metabolites levels may remain elevated long after a “high” wears off, and a person who is used to marijuana may react differently than a person who has just started using the drug.

For these reasons, some Ohio attorneys are fighting to change the current legal limits for medical marijuana patients who drive. At Dearie, Fischer & Mathews, we are keeping abreast of any changes in the law, and will update our clients and readers if any changes are made.

Thumbnail image for Dearie Head Shot 2011-15.jpgOther recent articles by Jim Dearie:
6 Myths About Legal Marijuana Use in Ohio  

How Can an OVI Affect My Gun Rights in Ohio?

Driving Stoned: Marijuana DUI-OVI in Ohio

How Do OVI Laws Affect the Medical Marijuana User?

Medical marijuana users will presumably have marijuana and its metabolites in their systems for as long as they are using the medicine and for some time afterwards. Are such users impaired for driving purposes? According to the current legal definition of “impaired,” medical marijuana users would most certainly fail any drug tests looking for the presence of marijuana or marijuana metabolite in their system.

For now, legal limits remain where they were before medical marijuana use was legalized. If you want to be certain to avoid OVI charges, you would need to avoid driving while you have marijuana in your system. Understandably, this can cause difficulty for people who are being treated medically for marijuana and who, like most of us, rely on the ability to drive in order to function in daily life.

Also be aware that an officer can still charge drivers with marijuana OVI, even if the blood and urine tests indicate marijuana levels fall within the legal limit. An officer who believes you have been using marijuana is authorized to make a judgement call that you are too impaired to drive and initiate an arrest without proof that you were over any legal limit for blood or urine content.

Defenses For Marijuana OVI Charges

If you are charged with marijuana OVI, an experienced defense attorney can help you convince the Court that you were not impaired while driving. This can be most convincingly accomplished at trial by bringing in an expert witness who can testify that marijuana users who have not used the drug recently are not usually impaired for driving purposes.

Courts may be lenient on drivers who are using marijuana legally for medicinal purposes, and our lawyers can argue this in your defense, if you have gone through the proper channels for obtaining medical marijuana . However, marijuana cannot be officially “prescribed” by your doctor, since it is still illegal under federal law. A marijuana-certified physician can “authorize” your use of marijuana as medicine, but marijuana still does not officially fall under the list of officially prescribable controlled substances that can be a defense in an OVI charge.

If you have been arrested for OVI in Ohio, give the attorneys of Dearie, Fischer & Mathews a call. We have been fighting successfully for our clients’ rights in local Courts for decades, and can help you get the best possible result if you are charged with marijuana OVI.