Marijuana and DUI / OVI

Marijuana and OVI / DUI – Can you be charged?

Yes, and the following content explains how and why.

In Ohio, a person is guilty of DUI / OVI if he or she operates any vehicle under the influence of alcohol, a drug of abuse, or a combination of them.
Ohio Rev. Code Ann. § 4511.19 (West 2010)

In Ohio, the threshold for drugged driving is illustrated in the following table. Ohio’s DUI / OVI Per Se Levels
Id.§ 4511.19(A)(1)(vii); Id. § 4511.19(A)(1)(viii)(I)-(II)

Affirmative Defense for Marijuana and DUI / OVI

It is a valid defense if a person obtained the controlled substance pursuant to a prescription issued by a licensed health professional authorized to prescribe drugs, and the person injected, ingested, or inhaled the controlled substance in accordance with the health professional’s directions.
Id. § 4511.19(K)(1)-(2)

NOTE: A doctor’s recommendation to use cannabis is NOT a prescription.

Implied Consent

• Any person who operates a vehicle upon a highway or any public or private property used by the public for vehicular travel or parking within this state or who is in physical control of a vehicle shall be deemed to have given consent to a chemical test or tests of the person’s whole blood, blood serum or plasma, breath, or urine to determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person’s whole blood, blood serum or plasma, breath, or urine.
  Id. § 4511.191(A)(2)
• If a person refuses to submit to chemical testing the penalty is license suspension for 1 year for the first refusal, two years for the second refusal, and three for the third refusal.
  Id. § 4511.191(B)(1)
• An arrestee who refuses to submit to blood alcohol test until he or she speaks with an attorney, the arrestee has essentially refused a chemical test.
  Dobbins v. Ohio Bur. of Motor Vehicles 75, 664 N.E.2d 908 (1996)
• Arrestee’s request to confer with an attorney before submitting to test was not refusal, where an attorney had been contacted on the first attempt and came to the police station within 15 minutes.
  Stone v McCullion, 500 NE2d 326 (1985)
• The law enforcement agency by which the officer is employed shall designate which of the tests shall be administered.
  Id. § 4511.191(A)(3)

Penalties for Marijuana and DUI / OVI

• First offense 1st-degree misdemeanor – mandatory minimum of 3 days consecutive imprisonment; maximum of 6 months imprisonment; OR required attendance in a driver’s intervention program for 3 days; fine not less than $375, not more than $1075; 6 months to 3-year suspension.
  Ohio Rev. Code Ann. §§ 4511.19 (G)(1)(a)(i),(iii),(iv) (West 2010); Ohio Rev. Code Ann. §4510.02(A)(5) (West 2010)
• Second offense (within 6 years) 1st degree misdemeanor – mandatory minimum of 10 consecutive days imprisonment, maximum imprisonment 6 months; required assessment by alcohol and drug treatment program; fine not less than $525, not more than $1,625; class 4 license suspension (1 to 5 years); offender’s vehicle and license plates impounded for 90 days.
  Id. §§ 4511.19 (G)(1)(b)(i),(iii)-(v); Id. § 4510.02(A)(4); Id. § 4511.193(B)(2)(a)
• Third offense (within 6 years) misdemeanor – mandatory minimum of 30 consecutive days imprisonment; maximum of not more than 1 year Fine not less than $850, not more than $2,750; class 3 license suspension; (2 to 10 years); required participation in an alcohol and drug addiction program; criminal forfeiture of vehicle.
  Id. §§ 4511.19 (G)(1)(c)(i), (iii),(iv),(vi); Id. § 4511.193(B)(2)(b)
• Fourth or Fifth offense 4th-degree felony – mandatory minimum of 60 days consecutive imprisonment; maximum imprisonment for 1 to 5 years; fine not less than $1350, not more than $10,500; 3 years to life license suspension; required participation in an alcohol and drug addiction program; potential criminal forfeiture of vehicle.
  Id. §§ 4511.19 (G)(1)(d)(i),(iii), (vi); Id. § 4510.02(A)(2); Id. § 4511.19(G)(1)(d)(v)
• Sixth Offense (or more) 3rd-degree felony – mandatory minimum of 120 days consecutive imprisonment; imprisonment for 1 to 5 years; fine of not less than $1350, not more than $10,500; license suspension; mandatory participation in an alcohol and drug addiction program; potential criminal forfeiture of vehicle.
  Id. §§ 4511.19 (G)(1)(d)(i),(iii)-(v)

Sobriety Checkpoints

In Ohio, law enforcement officials can conduct sobriety checkpoints under state and federal Constitution.

• Public interest was unquestionably advanced in an effective manner by sobriety checkpoint. Furthermore, police were not granted unfettered discretion, the checkpoint was publicly announced and cars were stopped in a non-discriminatory fashion.
  State v. Bauer, 651 N.E. 2d 46 (1994)

Case Law

State v. McLemore, 612 N.E.2d 795 (1992) — Positive urinalysis test for cannabis, along with signs of impaired driving, failed field sobriety tests, and cannabis in the defendant’s car, was sufficient to support a conviction for driving under the influence of marijuana. No threshold level of concentration of controlled substances is required.

Columbus v. Freeman, 908 N.E.2d 1026 (2009) — In Ohio, an intoxicated individual may use a vehicle as shelter, but may not operate a vehicle. ‘Operate’ is defined as “to cause or have caused movement of a vehicle.” Ohio does not have a safe harbor provision allowing drivers to pull over and sleep it off. You may still be charged with operating a vehicle while intoxicated if it can be proven you drove while intoxicated.