Fact-Checked: Why Trust Rittgers Rittgers & Nakajima The legalization of marijuana in Ohio has created a space in the law where it is possible to get yourself into trouble not having seemingly done anything wrong at all. Ohio Revised Code section 4511.19 criminalizing operating a motor vehicle while under the influence of alcohol or drugs of abuse, and marijuana is defined as a drug of abuse. While the substance is legal to possess and use in Ohio, and while the FDA and DEA have been directed to reschedule it, cannabis will continue to be a drug of abuse until otherwise reclassified by the legislature. If you are noticeably impaired by your ingestion of it, then you should not be driving and, if you do, you are in violation of 4511.19.
Why Is an Ohio OVI Conviction So Devastating?
Ohio’s OVI laws are fairly draconian- just being charged often creates automatic license suspensions, and convictions result in mandatory jail time, escalating penalties and mandatory fines and fees, often without any relationship to the actual danger one posed while committing the crime. The solution is often obvious: if you’ve consumed marijuana and feel buzzed, stoned, or even just “off”, there are scores of apps, friends, and relatives that you can use to obtain a ride.
The financial, emotional and psychological cost of a taxi, Uber or Lyft and the inconvenience of returning to pick up your car the next day is far less the stress and emotional toll of being charged with and defending an OVI, or, in the event of an accident with injuries, a potential felony offense that involves mandatory prison time in the Ohio Department of Corrections. If you ask people who have gone through the ordeal, almost to a person they will tell you that the worst consequence is the license suspension, which essentially is akin to being grounded by the government for at least a year on a first offense.
How a Lingering Odor Triggers an Unwarranted Investigation
One would think that this would make the calculus easy- “I feel fine, I haven’t used THC in the last 24 hours /couple of days, so I’m good to go”. Not so fast. To begin with, you can still be stopped, investigated, arrested and successfully prosecuted for an OVI even if you haven’t ingested THC recently and are sober. Typically this happens when an officer has another reason to stop you (speeding, or other minor traffic infraction) and then sees, hears or smells something that raises their suspicions when it comes to whether you have recently used marijuana or may be impaired. A large number of these investigations begin with the officer observing a “strong odor of marijuana”. It is not uncommon for officers to fail to distinguish between unburnt and burned marijuana, so any cannabis odor may raise suspicion.
The best way to prevent this is to never smoke in your car, and to travel with marijuana in an odor-proof bags. The lingering odor of marijuana is something that users may become noseblind to, but non-users and law enforcement can smell it like a dead skunk on the highway. Once they have made a determination to proceed with an investigation as to your fitness drive, you are wholly dependent upon their competency with regard to their assessment. In my practice, I frequently see people who appear perfectly sober arrested on suspicion of OVI.
Can You Fail a Urine Test Days After Using Cannabis?
Once arrested, an officer will ask for a chemical test, and in the case of suspicion of marijuana that test is almost always a urine test. Ohio Revised Code section 4511.19 (A)(1)(j)(viii)(I) provides that a person is under the influence of cannabis when that person has a concentration of marihuana metabolite in the person’s urine of at least fifteen nanograms of marihuana metabolite per milliliter of the person’s urine or, under (A)(1)(j)(vii)(I) that person has a concentration of marihuana in the person’s urine of at least ten nanograms of marihuana per milliliter of the person’s urine.
However, because the test used do not test for the active component in THC but merely tests for the presence of metabolites in your urine, there is no relationship between the presence of that in your urine and actual impairment- meaning that you can be sober, not have used THC for days and still be violating the law when it comes to operating a vehicle. If this sounds unfair and like it doesn’t make any sense, that’s because it is unfair and doesn’t make any sense.
The law used to be justified under the logic that marijuana is an illegal substance, and you shouldn’t any THC in your urine at any time- but now that we’ve collectively decided that adults have the discretion to choose to consume it creates a situation where sober, non-dangerous responsible adults can be subject to these mandatory fines and penalties.
How to Protect Yourself During an Ohio Traffic Stop
So what should you do? Well, for starters, as we stated before- don’t drive while high. However, if you’re stopped by the police, be polite and cooperative, but exercise your Fifth Amendment rights against self-incrimination and don’t provide them with information that you don’t have to- and that’s anything beyond your name, license and insurance information. Keep relatively still in your car, do not make sudden or furtive movements that may give them reason to search its cabin, and don’t make any statements as to consumption of any alcohol or drugs of abuse, or anything for that matter. The traditional battery of standardized field sobriety tests were not designed to detect marijuana usage but you still shouldn’t take them, and whatever you do do not provide them with a urine sample unless you’re a non-user. Keep all vape pens, loose marijuana, and paraphernalia used to consume it out of reach and ideally in the trunk in smell proof bags.
These simple steps can help you avoid headaches that cost you thousands of dollars, and can go a long way towards preventing you from ever having to contact an attorney to either help put the pieces back together or pick them up.