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Flying High on Marijuana Metabolites
By Jon J. Saia (Adams County, Allen County, Ashland County, Ashtabula County, Athens County, Auglaize County, Belmont County, Brown County, Butler County, Carroll County, Champaign County, Clark County, Clermont County, Clinton County, Columbiana County, Coshocton County, Crawford County, Cuyahoga County, Darke County, Defiance County, Erie County, Franklin County, Fulton County, Gallia County, Geauga County, Guernsey County, Hamilton County, Hancock County, Hardin County, Harrison County, Henry County, Highland County, Hocking County, Holmes County, Huron County, Jackson County, Jefferson County, Lake County, Lawrence County, Logan County, Lorain County, Lucas County, Madison County, Mahoning County, Medina County, Meigs County, Mercer County, Miami County, Monroe County, Morgan County, Muskingum County, Noble County, Ottawa County, Paulding County, Perry County, Pike County, Portage County, Preble County, Putnam County, Richland County, Ross County, Sandusky County, Scioto County, Seneca County, Stark County, Summit County, Trumbull County, Tuscarawas County, Union County, Van Wert County, Vinton County, Warren County, Washington County, Wayne County, Williams County, Wood County, Wyandot County)
In 2006, the Ohio Legislature passed a law making it “per se” illegal to operate a vehicle with an excess of a certain amount of marijuana or marijuana metabolites in whole blood, blood plasma, blood serum or urine. The law was passed as part of the government’s attempt to “get tough” on impaired driving. The assumption of the legislature was that marijuana or marijuana metabolites found in an individual’s blood or urine can be equated to impairment. The United States Government disagrees
The National High Traffic Safety Administration (NHTSA) states that “it is difficult to establish a relationship between a person’s THC (active marijuana metabolite) blood or plasma concentration and performance impairing effects.” In fact, it is so difficult that NHTSA states it is “inadvisable” to try and predict effect based upon the blood THC concentration. Further, it is “impossible” to predict impairing effects based upon THC-COOH (non-active marijuana metabolite) concentration in blood. Urine tests should never be used to determine a level of impairment from exposure to marijuana. Positive urine test results for THC or THC-COOH solely indicate past exposure to marijuana. In fact, NHTSA studies found that detection time is well past the window of intoxication and impairment and positive urine results generally indicate past exposure to marijuana.
The enactment of such laws places prosecuting attorneys, defense attorneys and judges in quite a predicament. Prosecutors must consider whether to prosecute such violations of the law knowing that government experts will testify that impairment cannot be proven by THC or THC-COOH levels in blood or urine. Some prosecutors have taken the position that the law as written is the law and it must be enforced. Others have seen the tremendous flaws in the law and have opted not to prosecute a “per se” marijuana charge.
Defense attorneys must consider going to trial on marijuana impairment cases despite the fact that test results may be admitted into evidence against their clients. Although meaningless, the results may be enough evidence to support a conviction.
This law also places judges in a very difficult position. Judges are the “gatekeeper” of the admission of evidence at trial. On one hand, evidence that has nothing to do with impairment should not be admitted in an impaired driving case. On the other hand, the law presumes a level of impairment despite the fact that such a presumption is not supported by science.
Once again, for the sake of obtaining “drunk (or drugged) driving” convictions, the Ohio General Assembly chose to ignore science.
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