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High Risk of Criminal Prosecution for Marijuana Users: Many Criminal Penalties Remain Despite Legalization of Medical Marijuana in Ohio

Medical marijuana was effectively legal in Ohio on September 8, 2018 and the first dispensaries opened in early 2019. In the coming months and years, we anticipate Ohio will see more dispensaries and more medical marijuana patients. Despite the legalization, medical marijuana patients and marijuana users have a number of legal pitfalls and restrictions.

THC and Marijuana Metabolite

The active ingredient in marijuana is Tetrahydrocannabinol (referred to as THC). THC causes psychological and physiological effects on the human body. The most accurate way to determine if a person's mind is altered by the use of marijuana is measuring the THC content of a person's blood or urine.

Ohio OVI Law

Ohio OVI law is archaic. Instead of testing for THC in a person's system to determine impairment, Ohio tests for the marijuana metabolite. The metabolite is a byproduct of using marijuana and stays in the body for a much longer period of time than THC. It remains in the body for days and sometimes weeks after the psychotropic effect of THC has worn off. Even people who smoke marijuana legally with a doctor's prescription and people who travel to other states where recreational use is legal risk being charged with serious crimes in Ohio weeks after they last used marijuana.

Under Ohio Revised Code Section 4511.19(A)(1)(j)(vii) a person can be charged and convicted of operating a vehicle under the influence of alcohol or drugs (OVI) if the person has thirty-five or more nanograms of marijuana metabolite per milliliter of urine, or fifty nanograms or marijuana metabolite per milliliter of whole blood, blood serum, or plasma. The marijuana metabolite is not a measure of current use but does indicate past marijuana use. Prosecutor's throughout the state apply the law differently and you risk being charged and convicted if the metabolite is found in your blood or urine if you are stopped while driving. OVI is not the most serious offense.

Aggravated Vehicular Homicide

If a person is involved in a traffic accident that involves a death and the threshold amount of marijuana metabolite is found in the person's chemical test, that person can be charged with OVI and aggravated vehicular homicide. Aggravated vehicular homicide is a second degree felony and carries a mandatory prison term if it involves a test over the legal limit for the marijuana metabolite.

Possession and Trafficking - Outdated Classification

Ohio passed medical marijuana to help patients with specific medical conditions and in doing so recognized the health benefits of marijuana. Despite this recognition, Ohio continues to classify the drug as a schedule I substance. Schedule I is the most serious criminal category of drugs. A schedule I drug is defined as having no health benefits and addictive qualities. Penalties related to schedule I drugs are serious.

In Ohio the sale of marijuana, even one gram, is a felony. Mandatory minimum sentences for the mere possession of large quantities of marijuana range from five to eight years in prison with no ability for early release and no discretion given to judges in sentencing. Prosecutors throughout the state differ in the way these mandatory minimum sentences are enforced. Cases are treated differently among the eighty-eight counties throughout Ohio. Some prosecutors strictly adhere to the mandatory minimum sentences even when the person has no prior criminal record. Other county prosecutors are willing to take a reasonable approach to determine a fair sentence given the recent trend in marijuana law and the contradiction in Ohio's archaic marijuana criminal statutes. 

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