Legal Marijuana Use and DUI/OVI in Ohio

In November of 2023, Ohio became the 24^th state to legalize the possession and use of recreational marijuana.  The voter-approved law (‘Issue 2’) went into effect earlier this month.  Implementation of the law requires administrative regulations, and the Ohio legislature is working on changes to the legislation.  Although the legislation permits possession and use of marijuana, it does not change Ohio laws related to driving under the influence of marijuana.

Ohio’s Recreational Marijuana Laws
The laws are found in Chapter 3780 of the Ohio Revised Code (ORC).  According to ORC section 3780.36, an individual who is at least 21 years of age (an ‘adult use consumer’) is permitted to use, possess, transport, and transfer marijuana (‘adult use cannabis’).  An ‘adult use consumer’ is also permitted to purchase marijuana, but only from an ‘adult use dispensary’ licensed by the Ohio Division of Cannabis Control.  In addition, pursuant to ORC section 3780.29, an ‘adult use consumer’ is permitted to grow and process cannabis plants at the individual’s primary residence and give away cannabis plants to another ‘adult use consumer’.

The law contains limits on the possession, transportation, transfer, and growing of marijuana.  Pursuant to ORC section 3780.36, an ‘adult use consumer’ is limited to possessing, transporting, and transferring 2.5 grams of marijuana and 15 grams of marijuana extract.  In addition, according to ORC section 3780.29, an ‘adult use consumer’ is limited to growing, processing, and transferring six cannabis plants.

Revisions to the Law are Expected
Both chambers of the Ohio General Assembly have expressed an intent to revise the new laws.  The Ohio Senate has already passed a bill, and the Ohio House of Representatives Finance Committee held multiple hearings on a separate bill.  The Senate bill limits the number of cannabis plants to six per household, prohibits transfer of marijuana, reduces the maximum permitted THC level in extracts from 90% to 50%, and limits legalized possession to marijuana which is purchased from licensed dispensaries or legally home-grown.  The House bill limits the number of cannabis plants to 12 per household and prohibits sharing of marijuana.

Driving Under the Influence of Marijuana is Still Illegal
Ohio Revised Code section 4511.19 contains five prohibitions related to driving under the influence of marijuana.

First, it is unlawful to operate a vehicle under the influence of a drug of abuse, including marijuana.  The prosecution must prove the marijuana impaired, to a noticeable degree, a person’s ability to operate a vehicle.

Second, it is illegal to operate a vehicle with a prohibited concentration of marijuana in a person’s blood or urine.  The prosecution must prove the person, at the time of operation, had at least two nanograms of marijuana per milliliter of the person’s blood or ten nanograms of marijuana per milliliter of the person’s urine.

Third, the law prohibits operating a vehicle with a proscribed concentration of marijuana metabolite.  The prosecution must prove the person, while operating the vehicle, had at least 50 nanograms of marijuana metabolite per milliliter of the person’s blood or 35 nanograms of marijuana metabolite per milliliter of the person’s urine.

Fourth, it is a violation of the law to operate a vehicle under the influence of alcohol and/or drugs and with a prohibited concentration of marijuana.  The prosecution must prove the person was under the influence and had at least five nanograms of marijuana per milliliter of blood or at least 15 nanograms of marijuana per milliliter of urine.

Fifth, a unique Ohio law criminalizes having physical control of a vehicle while under the influence of marijuana or with a prohibited concentration of marijuana or marijuana metabolite.  The prosecution must prove the person was ‘under the influence’ or ‘over the limit’ while seated in the driver’s position with the vehicle’s ignition key.

The New Law’s Impact on Ohio DUI/OVI Cases
Ohio’s legalization of recreational marijuana will result in more drivers being charged with DUI/OVI.  Ohio prohibits operating a vehicle with a proscribed concentration of marijuana metabolites in urine, and marijuana metabolites may be found in urine for up to five weeks.  When Ohio legalized medicinal marijuana, there was an increase in the number of marijuana-based DUI/OVI cases.  With the legalization of recreational marijuana, the increase will likely be greater.

About the Author:  Shawn Dominy is a leading OVI lawyer in Ohio and the founder of the Dominy Law Firm in Columbus, Ohio.  He can be reached through his law firm’s website:  Dominy Law Firm.