Legalized pot would require updated OVI rules
The campaign to legalize marijuana in Ohio has raised fears about an increase in people driving under the influence, despite assurances from supporters of Issue 3 that other states that have legalized marijuana have not seen a dramatic increase in accidents.

But Butler County Sheriff’s Maj. Mike Craft said cases of driving under the influence that involved marijuana increased 77 percent in 2014 in Colorado, citing statistics provided via the Buckeye State Sheriff’s Association. And cases of driving under the influence that involved only marijuana increased 41 percent, he said.

“It’s absolutely a great concern of ours,” Craft said. “We don’t know how it’s going to unfold, but it’s clearly on our radar.”

Passage of Issue 3 on the statewide ballot this November would allow for 10 grow sites, including one in Butler County, and permit anyone older than 21 to buy and use marijuana for medicinal or recreational purposes. This area’s grow site is designated for 40 acres in Middletown, which is made up of two land parcels near Yankee and Todhunter roads.

Butler County officials have taken a strong stance against the issue. County Commissioner Don Dixon called it “a terrible idea,” and State Rep. Tim Derickson, R-Hanover Twp., a strong advocate of economic development in the county, said “this is not exactly what I had in mind.”

Law enforcement officials throughout the state are voicing the loudest concerns about so-called drugged driving.

“Any time you authorize any substance that has the ability to impair and make it legal, you have to be concerned about its use and abuse,” said Hamilton Police Department Sgt. Ed Buns. “It’s not just one substance that’s contributing to their influenced condition.”

Buns, who heads the city’s traffic division, said legalizing marijuana has the ability to add to the legal and illegal drugs people already mix together before getting behind the wheel, such as alcohol and prescription drugs or opiates.

“People don’t give driving the respect it deserves, and that is to pay attention to what you’re doing,” Buns said. “Anything that inhibits, that has the ability to hurt someone else or yourself, is something that can easily be controlled.”

Craft said data provided through the Buckeye State Sheriff’s Association showed a 24 percent increase in marijuana use by youths ages 12-17 from 2009-12, an age range that includes the country’s newest, most inexperienced drivers.

“Sixteen- to 17-year-olds are clearly the most inexperienced drivers and they are the drivers who need to pay the most attention to the road,” he said.

Marijuana supporters argue that Ohio drivers will not be in any additional danger if Issue 3 passes.

“Just like drinking and driving, marijuana use and driving is strictly prohibited under Issue 3 and the state legislature will be required to pass laws with criminal penalties for doing so,” said Faith Oltman, spokeswoman for ResponsibleOhio.

The constitutional amendment would direct the legislature to “determine an acceptable and uniform standard of determining impairment based on performance testing, to restrict persons impaired by cannabis products for personal use from operating, navigating, or controlling any motor vehicle, aircraft, or motorboat.”

Oltman pointed to studies from the U.S. Department of Transportation showing traffic fatalities nationwide have dropped in recent years — including in states where marijuana use is legal.

If marijuana is legalized, law enforcement officers will have to undergo additional training. Greene County Sheriff Gene Fischer, president of the Buckeye State Sheriffs’ Association, said the legislature will have to take action to determine at what point marijuana use will constitute driving illegally.

“What is the legal limit going to be? Is it affecting you in three days (after use)? The medical community will have to step in and say ‘this is bad because’ or ‘this is OK once you get back to here,’ just like everybody saying .08 percent is the presumed ‘under the influence’ for alcohol,” Fischer said.

Middletown Assistant Police Chief Mark Hoffman said marijuana will become similar to alcohol-related offenses than drug offenses.

“You can test lower than the legal limit, but you are still impaired,” said Hoffman. “You have evidence that would have to point to how you were driving: did you hit a car, were you swerving?”

But then there are internal issues police agencies will have to address when it comes marijuana.

“Are we as an organization going to allow officers off-duty to use marijuana? They can certainly drink off-duty,” Hoffman said. “That’s a question that will have to be answered.”

West Chester Twp. defense attorney Jeff Meadows, who has handled upwards of 2,000 OVI cases, said he doesn’t believe there will be an increase in people driving while under the influence of marijuana.

“Most of the people I come in contact with who use marijuana use it at home,” he said. “They don’t get high and go to bars, they want to relax and watch TV.”

Meadows agreed with Fischer that law enforcement has no field sobriety tests, unlike with alcohol, to determine if someone is under the influence of marijuana. Meadows said he feels that will be a problem because marijuana affects people differently based on various factors, including how much is smoked or ingested, and the type of marijuana used.

Because there is not another alternative readily available or approved, testing for marijuana impairment “would require officers to take blood or urine,” Meadows said.

The problem with testing urine, he said, is that evidence of marijuana use can be in a person’s urine for four to five weeks, and that doesn’t indicate how it affected a person’s body.

And by testing blood, Meadows said “there is no national level of THC to determine impairment.”

Some of the local police agencies aren’t aware of any technology that could detect the amount of marijuana in a person’s system, similar to what a breathalyzer does to detect the amount of alcohol in a person’s system.

However, several companies, including the Canadian company Cannabix Technologies, are developing a device that could detect THC, or tetrahydrocannabinol, which is the chemical in marijuana responsible for most of the plant’s psychological effects.

Cannabix President Kal Malhi, a former member of the Royal Canadian Mounted Police, said police officers worldwide lack the tools to present evidence that will stand up in court when drivers are suspected of driving while impaired.

“We are now able to detect THC in breath. Studies have been done that say the lungs eliminate THC in two hours,” Malhi said. “If we are testing breath for THC, our tests will only test positive for a two-hour period.”

If marijuana does become legal, and Issue 2 (the anti-monopoly proposal) doesn’t pass and trump Issue 3, Hoffman said police budgets will have funds reallocated.

“A significant amount of money and resources go into marijuana enforcement, and that could be dedicated to other areas of law enforcement,” he said.

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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