“Right now we’re testing inactive metabolites, mostly through urine, and it’s really not accurate. The inactive metabolites don’t show impairment, it just shows whether or not you used it [in the past].”
By Jake Zuckerman, Signal Cleveland
This story was originally published by Signal Cleveland. Sign up for their free newsletters at SignalCleveland.org/subscribe.
The Ohio Senate unanimously passed legislation last week to overhaul the way that prosecutors must prove whether a person was driving under the influence of marijuana.
Ohio, like most the rest of the nation, has liberalized its marijuana laws over the past decade, now allowing recreational and medical use of the drug in a variety of forms.
This has posed a tricky challenge of setting a legal standard that prohibits driving while under the influence of marijuana, while not ensnaring people who are sober on the road but have used the drug in the past few days.
And unlike with alcohol’s well established limit of .08 percent of blood alcohol content as the legal threshold for impaired driving, the science around cannabis concentration in the blood is far murkier. Some people with high concentrations wouldn’t exhibit behavioral signs of impairment, while some people with low concentrations would, studies show.
“The current law allows for the conviction of innocent people, 100 percent straight out,” said Tim Huey in an interview, who lobbied for the bill on behalf of fellow DUI defense attorneys.
What the bill would do for drivers of accused of being high
Senate Bill 55, if agreed to by the Ohio House and the governor, would bring two big changes for people accused of driving while high. For one, it ends prosecutors’ current ability to convict drivers for driving under the influence based solely on the presence of marijuana “metabolites” in a person’s system.
Metabolites are the non-psychoactive byproduct of marijuana produced as the body breaks down (metabolizes) marijuana. Those metabolites can linger in a person’s system as long as 30 days after use, according to researchers and defense attorneys who support the bill.
Instead, police and prosecutors must show the presence of Delta 9-THC, the active ingredient that produces the high sensation.
The legislation also gives people accused of driving while high an opportunity to rebut the evidence against them if a comparatively lower concentration of marijuana is detected in their systems. That’s opposed to the “per se” system in current law, where a positive drug test almost guarantees a conviction.
“Basically right now we’re testing inactive metabolites, mostly through urine, and it’s really not accurate,” said Sen. Nathan Manning, a Lorain County Republican and former prosecutor who has pushed the legal change for years. “The inactive metabolites don’t show impairment, it just shows whether or not you used it [in the past].”
Several sources described the legal thresholds set in the legislation as the product of more art than science, and a compromise between prosecutors and defense attorneys who lobbied the bill.
Half baked?
Ohio legalized marijuana for medicinal use in 2019 and for adult recreational use in 2023, joining a list of 37 other states that allow some form of legal marijuana use. Senate Bill 55 would be the first major update to the marijuana DUI laws since then.
The roadways pose one of the biggest risk zones for a newly legalized intoxicating substance. Marijuana has been associated with slower reaction times, difficulty maintaining lane positioning, divided attention and other behaviors that worsen driving performance.
The problem, as noted in a 2017 National Highway Transportation Safety Administration research review, is that available evidence shows a weak correlation between blood THC concentration and measurable impairment.
The AAA Foundation for Traffic Safety in 2016 conducted a similar study and found that per se laws like Ohio’s “cannot be scientifically supported.”
While the organization opposes the legalization of marijuana due to what it describes as negative traffic safety implications, it opposes any per se DUI law unless prosecutors pair it with behavioral evidence of impairment like weaving between lanes or bloodshot eyes.
Legislation calls for THC testing, new thresholds
The proposed law still allows for per se convictions of marijuana. However, it raises that threshold from 2 nanograms per milliliter of blood to 5 ng/ml. In other words, a drug test detecting higher than that will yield a guaranteed conviction, assuming no legal roadblocks arise.
For those with concentrations of 2- to 5 ng/ml, juries and judges can “infer” that a driver was impaired. However, that driver can introduce evidence, summon witnesses, or testify on their own behalf to rebut that inference.
The new standard doesn’t absolutely rule out the possibility of a false positive, according to Alfred Staubus, a pharmacist and forensic toxicologist, However, he said in an interview that ending a legal system where the presence of marijuana metabolites can automatically trigger a conviction is a massive step forward.
“If you have it much higher than [5 ng/ml], then there will be a large group of people that are impaired that will not be convicted on a per se charge,” he said. “If you have it down to 2, then there’s going to be a large group of people that are not impaired but will be convicted.”
Prosecutors disagree
The Ohio Prosecuting Attorneys Association has successfully thwarted similar legislation over the past few years. This time around, the prosecutors declined to formally oppose the bill in committee.
Lou Tobin, the association’s executive director, said in an email that Manning, the sponsor, made changes the prosecutors asked for including maintaining a per se threshold for THC concentration in blood, and including various THC-knockoff products like Delta-8 THC (a similar product that has avoided regulation via a legal loophole).
He disputed the notion that testing for metabolites produces false positive convictions.
“People aren’t being randomly pulled over and subjected to urine tests,” he said. “They’re pulled over because the officer had some reason to suspect that they were driving impaired and then their urine is tested because there was probable cause that confirmed the suspicion.”
He said the prosecutors would be fine with a zero tolerance approach to any level of THC in the bloodstream. But keeping at least some limit, as the bill does, acts as a deterrence. Plus, he noted that the law still allows for OVI convictions for those who show signs of impairment while driving or speaking with officers.
“Someone who has used marijuana recently should assume the risks of that if they get behind the wheel,” he said.
The post Ohio Senate Passes Marijuana DUI Bill Aimed At Protecting Drivers Who Aren’t High Behind The Wheel From Prosecution appeared first on Marijuana Moment.
