The current method of testing for inactive metabolites is not very accurate. “The inactive metabolites doesn’t indicate impairment. It just shows if you used it.” [in the past].”
Signal Cleveland, Jake Zuckerman
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Last week the Ohio Senate unanimously approved a new law that will change the way prosecutors have to prove when a person is under the influences of marijuana.
Ohio’s marijuana laws have been liberalized over the last decade. It now allows recreational and medical usage of the drug.
The challenge is to create a law that will prohibit driving under the influences of marijuana while not trapping people who drive sober, but have consumed the drug within the last couple of days.
Cannabis concentrations in the blood are much murkier, unlike alcohol which is well defined at.08 percent blood alcohol level as the threshold legal for driving while impaired. According to studies, some people would show signs of impairment even if they had high cannabis concentrations, but others who did not, might.
In an interview with Tim Huey, who was lobbying for this bill in behalf of other DUI defense lawyers, he said: “The law as it stands allows the straight-out conviction of the innocent.”
Drivers accused of driving high could face a bill
Senate Bill 54, if approved by both the Ohio House and governor, will make two significant changes to the lives of those who are accused of driving 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.
As marijuana is broken down by the body (metabolized), a non-psychoactive substance called metabolites is produced. According to defense lawyers and researchers who support this bill, metabolites could remain in the body up to 30 day after consumption.
Police and prosecutors are required to show that Delta 9-THC is the ingredient responsible for the sensation of high.
A lower level of marijuana in the system of someone accused of driving high gives them an opportunity to refute any evidence. The “per-se” system of current law is a different approach, as a positive test for drugs almost ensures a conviction.
“Right now, the majority of urine tests are for inactive metabolites and they’re not very accurate,” explained Sen. Nathan Manning. A Lorain County Republican who is a former prosecutor and has been pushing this legal change since many years. The inactive metabolites do not show impairment; they only indicate whether you have used the substance. [in the past].”
The legal thresholds in the law were described by several sources as more an art than a science. They also considered it a compromise made between defense and prosecution attorneys that lobbied for the bill.
Half baked?
Ohio has legalized the use of marijuana as a medicinal drug in 2019, and recreational marijuana by adults in 2023. It joins a long list of other 37 states which allow marijuana usage in one form or another. Senate Bill 55 is the first significant update of marijuana DUI laws in over a decade.
Roadways are one of the most dangerous zones to be around for newly-legalized substances. The use of marijuana has been linked to slower reactions, trouble maintaining lane position, divided attention, and other driving behaviors.
According to a research review conducted by the National Highway Transportation Safety Administration in 2017, available data shows that there is a low correlation between THC levels and impairment.
AAA Foundation for Traffic Safety, in 2016, conducted a similar research and determined that “laws per se” like Ohio’s could not be supported scientifically.
The organization is opposed to the legalization marijuana because of what they call negative implications for traffic safety. However, the group opposes DUI laws per se unless the prosecutors can prove impairment by displaying behaviors such as weaving in and out of lanes or having bloodshot eyeballs.
New thresholds for THC and THC testing are required by law
This proposed legislation allows marijuana convictions to be made per se. This law raises the threshold to 5 ng/ml from 2 nanograms in milliliters of blood. A drug test that detects more than this will result in a conviction, provided no roadblocks are encountered.
Juries and judges are able to “infer” impairment in drivers with concentrations ranging from 2 to 5 ng/ml. The driver may present evidence or summon witnesses to refute that inference.
Alfred Staubus is a forensic and pharmacy toxicologist. He said that while the new standard may not eliminate the possibility of false positives, it was a major step in the right direction.
You can have it even higher if you want to [5 ng/ml]”If you have it down to two, there’s going to be a big group of people who are not impaired but will be convicted.” “If it’s down to 2 then a lot of people will get convicted even though they are not impaired.”
Prosecutors disagree
In the past, similar bills have been successfully defeated by The Ohio Prosecuting Attorneys Association. The prosecutors did not formally object to the bill this time.
Lou Tobin is the association’s executive director. In an email, he said Manning made all the requested changes. This included maintaining the per se THC threshold in blood as well as including THC-knockoffs like Delta-8 THC, a product similar to Delta-8 THC that was able to avoid regulation by using a loophole.
He rejected the claim that false positives can be obtained from testing metabolites.
“They aren’t randomly being pulled over to be subjected urine tests,” said he. They are pulled over when the officer has a reason to believe that the driver is impaired. Then, their urine will be tested if there’s probable cause.
The prosecutors, he said, would not object to a policy of zero tolerance for any amount THC found in blood. As the bill stipulates, a limit is necessary to deter. He also noted that OVI convictions are still possible for people who display signs of intoxication while driving, or when speaking to officers.
“Anyone who uses marijuana regularly should know the consequences of driving,” said the man.