Posts Tagged ‘marihuana’

Driving and Drugs: Ohio’s Per Se Marijuana Law

December 7th, 2012

Bottle for alcohol extract of cannabis. Label ...

While it is well established that alcohol consumption increases accident risk, evidence of marijuana’s culpability in on-road driving accidents and injury is far less clear. Although acute cannabis intoxication following inhalation has been shown to mildly impair psychomotor skills, this impairment is seldom severe or long lasting.  According to the US Department of Transportation, National Highway Traffic Safety Administration. State of Knowledge of Drugged Driving: FINAL REPORT. op. cit., “Experimental research on the effects of cannabis … indicat[e] that any effects … dissipate quickly after one hour.”  According to the 2004 National Highway Traffic Safety Administration factsheet, Drugs and Human Performance, peak acute effects are typically reached within 10 to 30 minutes after inhalation.

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

Prohibited Substance Urine Blood
Marijuana 10 ng/ml 2 ng/ml
Marijuana metabolite 35 ng/ml 50 ng/ml
Marijuana metabolite in combination with alcohol or other drugs 15 ng/ml 5 ng/ml

The above levels establish a per se level above which a person is considered to be statutorily impaired by marijuana. Ohio’s law represents the imposition of per se laws for drivers who test positive for THC in the blood without additional demonstrable evidence of psychomotor impairment.  Just like with alcohol, the “legal limit” is not linked with any qualities of the individual, including weight, frequency of use, time of last use or the bodies ability to metabolize THC.  The penalties imposed for a violation of the marijuana per se law are equivalent to the penalties for OVI.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Springboro, Huber Heights, Oakwood, Beavercreek, Centerville and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

Aggravated Drug Trafficking vs. Drug Trafficking in Ohio

February 22nd, 2012

Because of the high-profile nature of drug offenses, trafficking in drugs has overlapping federal and state jurisdiction.  The Comprehensive Drug Abuse Prevention and Control Act is the legal foundation of “War on Drugs” in the United States. The Act regulates the manufacture, possession, movement, and distribution of drugs in our country. It places all drugs into one of five schedules, or classifications, and is controlled by the Department of Justice and the Department of Health and Human Services, including the Federal Drug Administration.  Ohio law, as set forth below, adopts this drug classification system.  Drug trafficking can be charged as a federal offense, Ohio offense or both a state and federal offense.  In Ohio, O.R.C. 2925.03 prohibits trafficking in drugs.  It provides that,

(A) No person shall knowingly do any of the following:

(1) Sell or offer to sell a controlled substance;

(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe that the controlled substance is intended for sale or resale by the offender or another person.

Ohio uses “Schedules” to classify drugs. See O.R.C. 3719.41.  Schedule I drugs have the most potential for abuse and no acknowledged medical use in the United States. Drugs in this schedule include heroin, cocaine, marihuana and hashish.  Schedule II drugs include drugs like hydrocodone, opium, methamphetamine and opium which have a great potential for abuse and a minimal medical use.  LSD and pentobarbital have an acknowledged medical use and a lower potential for abuse, thus they are classified as Schedule III drugs.  Schedule IV drugs have a lower potential for abuse than Schedule III drugs and have accepted medical uses in the United States. Examples of controlled substances in this schedule are Xanax and Valium.  Schedule V drugs have a lower chance of abuse than Schedule IV drugs, have a currently accepted medical use in the US, and lesser chance or side effects of dependence compared to Schedule IV drugs.  This schedule includes such drugs as cough suppressants with Codeine. Schedule V drugs are regulated but generally do not require a prescription.

According to Ohio Rev. Code § 2925.03(C)(1), if the offense involves certain controlled substance in Schedule I or II, it is considered aggravated trafficking in drugs.  Drug trafficking, Ohio Rev. Code § 2925.03(C)(2), generally only applies to controlled substances listed in schedules III, IV or V of Ohio’s drug schedule.  The penalty provisions for drug offenses are among the most complicated in the criminal code and require an attorney of sophistication to navigate.  If you get arrested for possession of a controlled substance, aggravated trafficking or any other drug charge, it feels like your world is falling apart.  If you are unfamiliar with the judicial system you are likely scared to death and wondering what will happen.  The first and most important decision you can make at this point is to hire an experienced and competent defender.  Charles M. Rowland II will file a motion to suppress, aggressively prepare for trial and present your best case to the prosecutor.  Preparation leads to better results including dismissal, a reduction in your charge, treatments in lieu of conviction, or an acquittal at trial. CONTACT him here!

Charles M. Rowland II dedicates his practice to defending the accused in FairbornDayton,SpringfieldKetteringVandaliaXeniaMiamisburgSpringboroHuber HeightsOakwood,BeavercreekCenterville and throughout Ohio.  He is counsel to Miami Valley NORML and a speaker for LEAP (Law Enforcement Against Prohibition).  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebookand on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at:CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

Ohio’s Marihuana Possession Laws

February 14th, 2012

English: Marijuana seeds. Español: Semillas de...

Marihuana is illegal in Ohio.  See O.R.C. 2925.11.  While some states have taken steps to legalize, decriminalize or actively not enforce marihuana laws, Ohio maintains criminal penalties for possession of even small amounts of pot.  The Ohio State Highway Patrol has stepped up marihuana enforcement and local police, depending on the jurisdiction, are vigilant in enforcing marihuana laws.  Unlike many other states, Ohio’s penalties are based entirely on weight.  Even a trace amount of a controlled substance may be the basis for a drug abuse conviction. State v. Teamer (1998), 82 Ohio St. 3d 490.

Possession of less than 100 grams is a minor misdemeanor which carries no possibility of jail and a maximum fine of $150.  101 grams to 200 grams of marihuana, if possessed, will result in a 4th degree misdemeanor punishable by a fine of up to $250 and a jail sentence of up to 30 days.  Possessing (which includes holding) over 201 to 999 grams is a fifth degree felony level offense which carries a 6 to 12 months in prison (not jail…prison) and a maximum fine of $2,500.  If caught possession 1000 to 4999 grams you face a third degree felony, a maximum $10,000 fine and anywhere from 1-5 years in prison.  Interestingly, possession 5000-19,999 is also a third degree felony carrying the same potential penalties as possession 1000-4999 grams but many judges sentence offender more harshly at this level of possession.  If a defendant is found with over 20,000 grams he or she faces a mandatory 8 years in prison and a maximum fine of $15,000.  Alleged offenders may face any one or more of the following direct penalties: Jail or prison sentence, Probation or parole, Regular or random drug testing, Fines, Community service, Court-ordered substance abuse treatment, A criminal record, License suspension and untold unexpected consequences from a humiliation, loss of employment to expulsion from school and being barred from subsidized housing.  Even minor drug cases, such as possession of a small amount of marijuana, can prevent you from getting a job, qualifying for student loans or obtaining a weapons permit.  Felony drug offenses also have potential to result in forfeiture of money or property.

2925.11 Possession of controlled substances.

(A) No person shall knowingly obtain, possess, or use a controlled substance.

(C) Whoever violates division (A) of this section is guilty of one of the following:

(3) If the drug involved in the violation is marihuana or a compound, mixture, preparation, or substance containing marihuana other than hashish, whoever violates division (A) of this section is guilty of possession of marihuana. The penalty for the offense shall be determined as follows:

(a) Except as otherwise provided in division (C)(3)(b), (c), (d), (e), or (f) of this section, possession of marihuana is a minor misdemeanor.

(b) If the amount of the drug involved equals or exceeds one hundred grams but is less than two hundred grams, possession of marihuana is a misdemeanor of the fourth degree.

Ohio also defines “possession” expansively.  See State v. Mann (1993), 93 Ohio App. 3d 301, 308-309 — “A person has constructive possession of a thing or substance when he is able to exercise dominion or control over it…Ownership of the contraband need not be established. A person may indeed control or possess property belonging to another. The Supreme Court has held that knowledge of illegal good on one’s property is sufficient to show constructive possession….Where the defendant neither owns, leases nor occupies the premises, his mere presence in an apartment in which drugs and criminal tools are found is insufficient evidence of his possession of the contraband…”  According to Ohio Revised Code § 2925, marijuana offenses require merely “knowledge” and “reasonable belief.”

A marijuana arrest and charge does not mean that you will be convicted. There are several defenses to marijuana charges that will result in a dismissal of the charges.  Drug possession charges can be challenged and beaten in court with a variety of legal strategies, including motions to suppress on grounds of illegal search, and a host of other options depending on the facts of your particular case.  If you find yourself facing a drug charge it is vital that you 1) take the charge seriously, and 2) contact a lawyer with the skill and knowledge to defend your case.  We offer free consultations and once we know the facts of your case we can give you a good indication of what type of sentence you face and what we can do to beat the case.  We are former prosecutors and skilled defenders who have built a team of former cops, forensic experts, toxicologists, and medical professionals.  We take our job seriously and we fight.

Charles M. Rowland II dedicates his practice to defending the accused in Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Springboro, Huber Heights, Oakwood, Beavercreek, Centerville and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324. 

Ohio OVI Law: Impairment by Drugs of Abuse

March 15th, 2011
Various prescription and street drugs may caus...
Image via Wikipedia

Ohio Revised Code 4511.19(A)(1)(j) prohibits the operation of a vehicle under the influence of any of the following controlled substances: amphetamine, cocaine, cocaine metabolite, heroin, heroin metabolite (6-monoacetyl morphine), L.S.D., marijuana, marijuana metabolite, methamphetamine, phencyclidine, salvia divinorum, or salvinorin A.  The statute sets forth statutorily prohibited concentrations of each of the drugs set forth above.  For impairment purposes, “drugs of abuse” is defined  as set forth in Ohio Revised Code 3719.01 which includes not only illegal drugs and/or controlled substances  but also includes harmful intoxicants under Ohio Revised Code 2925.01(I) and dangerous drugs under Ohio Revised Code 4729.01(F).

If you are stopped on suspicion of OVI (operating a vehicle while impaired) due to suspected drug use, contact Ohio OVI attorney Charles M. Rowland II today at 937-318-1DUI (318-1384) or 1-888-ROWLAND (888-769-5263) or text DaytonDUI (one word) to 50500.  You can also stay on top of developments in Ohio drug and alcohol law by “liking” Dayton DUI/OVI Defense on Facebook or by following @DaytonDUI on Twitter.

Zero Tolerance for Driving Under the Influence of Drugs? (from NORML)

January 31st, 2011

The National Highway Traffic Safety Administration posted a press release entitled “Drug Use Among Fatally Injured Drivers Increased Over the Last Five Years“.  The release summarizes the full report that examines the the drug test results of drivers who had been killed in automobile crashes.  While the report itself is objective and offers many caveats about reading it as an indictment of drug-using drivers as serious safety risk, the mainstream media hasn’t been as “fair and balanced” and the Drug Czar has jumped on the release to forward his agenda.

The headline from the Associated Press reads: “Gov’t: Drugs were in 1 in 5 drivers killed in 2009“.  The lede for the story is:

About 1 in 5 drivers who were killed last year in car crashes tested positive for drugs, raising concerns about the impact of drugs on auto safety, the government reported Tuesday.

Other outlets like USA Today give it a more chilling headline: “U.S.: Third of tests on motorists killed shows drug use“.  The discrepancy results from the AP considering all drivers who were killed when not every driver killed was drug tested.  The USA Today considers the “tests on motorists killed”, thereby discounting the 37% of killed drivers who were never drug tested.  Whatever – 20% of all drivers or 33% of all drivers tested – they’re dead, they drove, there’s drugs, be afraid!

The AP then follows with a second paragraph that points out the obvious logical fallacy of “correlation = causation” – just because dead drivers had drugs in their system doesn’t mean drugs caused the accident that killed them - something the USA Today article never addresses:

Researchers with the National Highway Traffic Safety Administration said the new data underscored a growing problem of people driving with drugs in their systems. But they cautioned that it was not clear that drugs caused the crashes and more research was needed to determine how certain drugs can hinder a person’s ability to drive safely.

However, while AP doesn’t get around to distinguishing what exactly “drugs” refers to until paragraph seven, USA Today opens by explaining we’re talking about all drugs, prescription and recreational:

One-third of all the drug tests done on drivers killed in motor vehicle accidents came back positive for drugs ranging from hallucinogens to prescription pain killers last year — a 5 percentage point increase since 2005, the National Highway Transportation Safety Administration reported Tuesday.

Nobody recommends driving while impaired by drugs – legal or illegal.  NORML has maintained this as a core Principle of Responsible Use for years.  But there are many legal prescription drugs that will cause impairment that bear the warning “Until you know how you may be affected by this drug, do not drive or operate heavy machinery,” which suggests to me that once you do know how it affects you, it’s your judgment call.  In fact, one of those drugs is prescription dronabinol, the synthetic cannabinoid THC marketed as “Marinol”.

AP’s seventh paragraph also points out that presence of a drug in your system may have no bearing on whether that drug was impairing you in the first place:

The tests took into account both legal and illegal drugs, including heroin, methadone, morphine, cocaine, methamphetamine, marijuana, LSD, prescription drugs and inhalants. The amount of time the drug could linger in the body varied by drug type, the researchers said, so it was unclear when the drivers had used the drugs prior to the fatal crashes.

Cannabis metabolites can be detectable in urine for weeks and THC itself can be detected blood for at least six hours.  Most illegal drugs can be detected for a few days in urine and a few hours in blood.  Prescription drugs are just as varied.  So we’ve got 20% or 33% of killed drivers who had a drug in their system that may or may not have contributed to the crash that killed them and they may or may not have taken that drug before driving.

For comparison’s sake, USA Today links to the stat that drowsiness was a factor in 17% of all fatal crashes.  You just may be more likely to die in a crash caused by lack of a nap as by taking the pill to get a good night’s sleep.  Are you scared yet?  Well, you should be, because the whole point of scaring you about the drugged drivers is the push for nationwide zero-tolerance DUID laws.  Back to the USA Today:

Gil Kerlikowske, director of the Office of National Drug Control Policy, called the numbers of fatalities involving drugs “alarmingly high,” and called for more states to pass laws making it a crime to have illegal drugs in the body while driving, no matter how much. Seventeen states already have such laws.

The lack of research also presents a problem for lawmakers to develop laws. They can outlaw the use of all illegal drugs while driving, but what about someone who took a prescription sleeping pill a few hours ago?

Since they can outlaw the illegal drugs and there is no political cost in doing so, they will.  These “zero tolerance” laws means if they detect any metabolite of any illegal drug, you are guilty of driving impaired.  Since that joint you smoked could be detectable long after its effects had worn off, you’d be an impaired driver in the eyes of the law even if you were completely sober and unimpaired.  Since marijuana is detectable for much longer periods than most any other drug, legal or illegal, “zero tolerance” laws amount to witch hunts for cannabis consumers behind the wheel.

The irony here is that compared to the threat from drinking drivers, drowsy drivers, texting drivers, and prescription drugged drivers, the threat from drivers using cannabis is negligible.  Just last week we took a look at a study in the Netherlands that showed that experienced users can develop a tolerance to the psychomotor impairing effects of cannabis.  This summer we examined a study performed in Iowa and Connecticut that showed cannabis-using drivers performed as well on a driving simulator after smoking marijuana as they did before smoking marijuana.  (If you’d like the full examination of marijuana and driving, please see Paul Armentano’s impeccable white paper, Cannabis and Driving: A Scientific and Rational Review.)

As for the prescription drugs, there isn’t much political benefit in threatening a majority of your constituents, especially the older ones who do most of the voting, with a DUI charge for the pills the doctor required them to take every day.  Also consider the lobbying money and clout of Big Pharma that won’t look kindly on strict new driving laws that might cause people to use less pills.

No, the per se limit on prescription drugs isn’t coming to your state anytime soon… but maybe the end of driving privileges for cannabis consumers in your state is.  The seventeen states with current per se DUID laws are:

  • Arizona (except for medical marijuana patients), Utah, South Dakota, Illinois, Indiana, Delaware, and Georgia already have these zero tolerance laws for any THC or metabolites of THC – if you toked within the past week, you could already be an impaired driver.
  • Iowa, Michigan, Wisconsin, and Rhode Island have zero tolerance for THC in the blood – if you toked before bed you might be an impaired driver in the morning.
  • Nevada and Ohio consider you impaired if they detect 2 nanograms (2 billionths of a gram) of THC per milliliter of blood (2ng/ml) and Pennsylvania raises that limit to 5ng/ml.
  • Virginia, Minnesota, and North Carolina have zero tolerance laws for drugs that do not include cannabis or its metabolites.
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