Alcohol is the most common drug found in the blood of Ohio drivers involved in crashes and traffic stops. Marijuana is the second most common. With marijuana use up in general, law enforcement is noticing an uptick in drugged driving involving marijuana. As a result, police around Ohio are stepping up efforts to detect and arrest drivers impaired from marijuana use.
Alcohol OVI vs Marijuana OVI:
Is There a ‘Breathalyzer’ for Marijuana?
No, there is no breathalyzer for marijuana OVI test. Over the last several decades, law enforcement has been developing reliable testing procedures to determine if a driver is impaired from the use of alcohol. Tests such as the breathalyzer and field sobriety tests have become the norm for evaluating whether a driver is currently under the influence of alcohol to the point of impairment. The Constitutionality of these tests have been upheld in numerous court challenges over the years. However, the breathalyzer and some parts of the standard field sobriety tests are not effective in detecting impairment from marijuana.
Testing for Marijuana OVI: What are THC and THC metabolites?
The marijuana or cannabis plant contains hundreds of chemicals. The chemical that causes a psychoactive, or mind-altering effect is Tetrahydrocannabinol, known commonly as THC. THC is known as the “parent drug,” and “THC metabolites” are the chemical components of THC found in a person’s system after the parent drug is broken down through the normal digestive processes.
There are no road-side tests that reliably detect impairment from marijuana. The model of breathalyzer and field sobriety testing used to detect impairment from alcohol do not work for marijuana testing. Other tests, such as blood and urine tests, are used look for the presence of THC and its metabolites.
Limitations on Marijuana Testing for OVI
In its 2017 Report to Congress, the National Highway Traffic Safety Administration outlines the two main frustrations with testing blood marijuana content as it relates to impairment for drivers on the nation’s roadways. The first is that drivers who are impaired from marijuana may not show the presence of marijuana in their system from standard tests. The second is that drivers are instead tested for marijuana metabolites, which can be present long after a driver is functionally impaired.
Drivers who have smoked or ingested marijuana can be functionally impaired for several hours after taking marijuana. However, the parent drug, THC, is not detectable in the blood for that long. Therefore, a driver could be functionally impaired from marijuana even if the drug tests do not reveal the presence of marijuana in the person’s system.
To deal with this problem, Ohio uses a method for detecting the presence of marijuana metabolites in blood and/or urine samples. THC metabolites are chemicals that are present in blood and urine after the parent drug, THC, has been broken down by the driver’s metabolism. These metabolites can be present in a person’s system for days or weeks after having smoked or ingested marijuana, long after the psychoactive effects of the drug have worn off.
Is it legal for the State to test for metabolites? Ohio Courts say Yes
The courts have wrestled with this question: Is it Constitutional to test for THC metabolites when the tests do not accurately reflect functional impairment of a driver at the time of the test? The courts have said yes: state legislatures are within their rights to enact these laws to “maintain safety on public roadways by providing a mechanism by which to prosecute individuals who operate a motor vehicle while under the influence of marijuana” (State v. Schulz, 2015-Ohio-2252). (See also State v. Topolosky, 2015-Ohio-4963). So, like it or not, these testing standards are here to stay unless and until a more accurate test can be developed.
Roadside evaluation of Marijuana Impairment
An officer may pull you over for any traffic infringement:
· driving erratically
· weaving in your lane
· failure to use a turn signal
· crossing a solid yellow or white line
and the list goes on.
If the officer believes you are or may be impaired, you will likely be charged with marijuana OVI if the officer also observes:
· odor of marijuana
· marijuana in your vehicle
· marijuana paraphernalia in your car or on your person.
The officer may also test a driver’s blood or urine for the presence of marijuana or marijuana metabolites. If the tests show drug levels above the legal limit, the driver can be charged with OVI, even if there are no other visible signs of impairment.
Ohio Drug Recognition Experts
Ohio participates in a program that trains police officers to recognize signs of drug impairment in drivers. Several police agencies have on staff one or more Drug Recognition Experts (DRE’s), who have obtained specialized training in detecting impairment from marijuana and other drug use. A DRE may be called upon to evaluate a driver through a 12-point assessment that includes an interview, testing of heart rate and blood pressure, evaluating pupils’ behavior, and muscle tone. The results of a DRE evaluation is often included with the police report for a driver charged with OVI.
What are the Legal Limits for Presence of Marijuana in Blood or Urine Samples?
The presence of marijuana (THC) or marijuana metabolite are measured in nanograms per milliliter. A nanogram is one billionth of a gram.
THC (parent drug) Limits: concentration ≥ 2 ng/ml THC in blood or ≥ 10 ng/ml THC in urine.
THC Metabolite Limits: concentration ≥ 50 ng/ml THC in blood or ≥ 35 ng/ml THC in urine.
THC Metabolite limits with alcohol impairment: *concentration ≥ 5 ng/ml in blood or ≥ 15 ng/ml in urine.
(*Notice that if driver is alcohol-impaired, then the marijuana metabolite limits are lower.)
What are the Penalties for Marijuana OVI?
The penalties for marijuana OVI conviction are the same for alcohol OVI. If you are charged with marijuana OVI, it is well worth your effort to fight the charges and avoid conviction.
First Conviction in 10 years:
· Jail: 72 hours or court-ordered driver intervention program.
· Fine: $375 to $1,075.
· License suspension: 6 months to 3 years (Possibility of restricted driving privileges).
Second Conviction in 10 years:
· Jail: Mandatory minimum 10 days to 6 months or combination house arrest with alcohol monitoring and jail time.
· Fine: $500 to $1,625.
· License suspension: 1 to 7 years.
· Vehicle immobilized: 90 days.
· Court-ordered drug/alcohol assessment with treatment.
Third Conviction in 10 years:
· Jail: Mandatory minimum 30 days to 1 year or combination house arrest with alcohol monitoring and jail time.
· Fine: $850 to $2,750.
· License suspension: 2 to 12 years.
· Court-ordered drug/alcohol addiction program.
A 4th or 5th OVI conviction in 10 years, or a 6th OVI conviction in 20 years are treated as felonies and can have serious consequences. Call our offices for more information if you are facing these charges.
Defenses for Marijuana OVI
There are several defenses that can be raised to fight a charge of marijuana OVI. As in alcohol-related OVI charges, we will gather all evidence in your case, including police reports, video evidence, witness testimony, as well as your side of the story.
We then challenge the state’s evidence:
• Do police reports and video evidence support probable cause for the traffic stop?
• Did the police have valid reason to make an arrest for marijuana use or possession?
- Were drug evaluation tests conducted properly and by qualified personnel?
- Was evidence handled according to proper protocol?
- Was Miranda warning given properly?
• Were blood and urine samples tested within the appropriate window of time?