The Ohio Senate unanimously passed Senate Bill 55, which would revise Ohio law for marijuana DUI (called ‘OVI’ in Ohio). The bill is now being considered by the Ohio House of Representatives. Ohio’s current law forbids operating a vehicle with prohibited levels of ‘marihuana’ and ‘marihuana metabolites’. SB 55 instead proscribes operating with a prohibited level of THC: not marijuana, and not metabolites. The law would also increase the prohibited level of THC and create a permissible inference of intoxication for low levels of THC.
New Law Would be Based on THC, Not Marijuana
Currently, Ohio Revised Code section 4511.19 prohibits operating a vehicle while ‘under the influence of ‘marihuana’ or while having a prohibited concentration of ‘marihuna’ in one’s blood or urine. Under SB 55, the prohibited substance is tetrahydrocannabinol (THC) rather than ‘marihuana’.
The change makes sense for two reasons. First, marijuana (cannabis sativa) contains hundreds of chemical compounds, and THC is the compound which is psychoactive: it causes the behavioral and cognitive effects which may impair driving ability.
Second, marijuana would never be found in a blood or urine test. When marijuana is ingested, it is broken-down into compounds and their metabolites. What is detected in a drug test is THC or one of its metabolites, not marijuana.
New Law Would Not be Based on Metabolites
Under the current law, a person may be prosecuted for operating a vehicle while having a prohibited concentration of ‘marihuna metabolite’ in their blood (50 nanograms per milliliter) or urine (35 nanograms per milliliter). This is a ‘per se’ violation of the OVI law: it is, by itself, illegal to do so, even if driving ability is not impaired.
Under SB 55, there will be no ‘per se’ law based on marijuana metabolites in blood or urine. This change is supported by science. Marijuana metabolites found in blood and urine do not indicate intoxication. The only compound which is psychoactive is THC. The presence of other marijuana components or metabolites is irrelevant to impairment, so Ohio should only test for THC. Marijuana metabolites may be detected for up to five weeks after ingestion, and we should not prosecute people for driving after smoking a joint five weeks ago. The current law is not supported by science.
New Law Would Increase Threshold for ‘Per Se’ Violation
If SB 55 becomes law, there would be a ‘per se’ law based on THC in blood. Under the current law, a person may be convicted for operating a vehicle while having two nanograms or more of marijuana per milliliter of blood. Under SB 55, the prohibited concentration of THC is increased to five nanograms or more of THC per milliliter of blood.
SB 55 adds language to the statute which explicitly permits the defense to challenging the drug test’s analysis. Challenges may include the test’s admissibility under the Ohio Rules of Evidence, as well as “the method, process, reliability, or equipment” used in the analysis.
New Law Would Make Low THC Level a Rebuttable Inference
For the charge of OVI ‘impaired’, the prosecution must prove the defendant operated a vehicle while ‘under the influence’ of a drug of abuse. ‘Under the influence’ means the drug affected the person in a way which would impair that person’s ability to operate a vehicle.
Under SB 55, a judge or jury determining guilt would be permitted to infer (without expert testimony) a person was ‘under the influence’ of ‘marihuana’ if the person had a concentration of at least 25 nanograms of THC per milliliter of urine, or at least two but less than five nanograms of THC per milliliter of blood, or at least five nanograms or more of THC per milliliter of oral fluid. The defendant would be permitted to rebut the inference with evidence showing he was not ‘under the influence’
SB 55 Would Improve Marijuana OVI Law
The truth is Ohio should not have an OVI ‘per se’ law based on THC levels because there is not a particular blood THC level at which all people are impaired. However, passing a law requires compromise, and some Ohio legislators will not eliminate the ‘per se’ marijuana OVI law despite the science. SB 55, while not entirely true to science, is an improvement over the current law.
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.
