(614) 361-2804 Call 24/7

Is Ohio’s Marijuana “Drugged Driving Per Se” OVI Law Constitutional?

A recent Ohio Court of Appeals decision – State v. Schulz, 2015-Ohio-2252 – considered whether Ohio’s drugged driving law is constitutional.  Specifically, Ohio’s OVI law makes it a crime to drive with more than 35 ng/ml of marijuana metabolite in the driver’s urine.  If a urine test is over this limit, the person can be found guilty of an OVI – regardless of whether they were actually impaired.  

The defendant argued that the drugged driving marijuana limit draws an arbitrary distinction between similarly situated classes of unimpaired drivers.  For example, there could be scenarios where someone smoked marijuana the day before and yet they still are over the limit – even though they are no longer impaired.

Regardless of this scientific data, the court found that because the statute meets the low bar of the “rational basis” test under the Fourteenth Amendment, the statute is constitutional.  As a result, the court upheld Ohio’s drugged driving law. 

Expired Plates Leads to Marijuana OVI (Drugged Driving) Charge

In this case, an Ohio State Trooper checked a vehicle’s registration plate and discovered that the plate was expired. After initiating a traffic stop, the trooper approached the vehicle and detected the odor of marijuana. He asked whether the driver or passenger had been smoking marijuana, and they both said they had.

The driver was arrested and asked how recently he had smoked marijuana.  He said that he had smoked a “one hitter” approximately an hour before the stop.  The trooper also found a glass smoking device in the center console.

The Trooper proceeded to administer three standard field sobriety tests.   He observed 0 of 6 possible clues of impairment on the Horizontal Gaze Nystagmus Test, but did notice that the driver’s pupils were dilated.

With the remaining two tests, he observed 4 of 8 possible clues of impairment on the Walk and Turn Test, and 3 of 4 possible clues of impairment on the One Leg Stand Test. No other field sobriety tests were administered.

The driver when then arrested for OVI and provided a urine sample.  The test results indicated 252.07 nanograms per milliliter of Marijuana Metabolite.  He also sent a sealed plastic bag containing the smoking device containing burnt plant residue for testing.  It was confirmed that it was marijuana residue weighing .02 grams.

He was charged with OVI – driving with a prohibited concentration of marijuana metabolites in violation R.C. 4511.19(A)(1)(j)(viii).

Is Ohio’s Marijuana “Per Se” OVI Statute (“Drugged Driving”) Constitutional?

The Defendant’s Argument

In his motion to suppress, the Defendant challenged the constitutionality of the charge of operating a vehicle with a prohibited concentration of marijuana metabolites, or “drugged driving.”

The gist of his argument is this:  Ohio’s marijuana OVI statute prohibits driving with at least 35 ng/ml of marijuana.  The defendant says that this could include people were not actually impaired.  So, he says, the statute essentially discriminates against those who have smoked marijuana but are not actually impaired.

Ohio’s Drugged Driving – Marijuana OVI – Statute

R.C. 4511.19(A)(1)(j)(viii)(II) states:

“No person shall operate any vehicle * * * if, at the time of the operation * * * the person has a concentration of any of the following controlled substances or metabolites of a controlled substance in the person’s whole blood, blood serum or plasma, or urine that * * * [a]s measured by gas chromatography mass spectrometry, the person has a concentration of marihuana metabolite in the person’s urine of at least [35] nanograms of marihuana metabolite per milliliter of the person’s urine or has a concentration of marihuana metabolite in the person’s whole blood or blood serum or plasma of at least fifty nanograms of marihuana metabolite per milliliter of the person’s whole blood or blood serum or plasma.”

The Fourteenth Amendment Rational Basis Test

The Fourteenth Amendment says that no State shall deny any person equal protection under the law.  In cases where a fundamental right is not implicated, the court asks whether the statute is “rationally related to a legitimate government interest.”

In his brief, the defendant argues that Ohio’s drugged driving law punishes unimpaired drivers for OVI offenses, solely based on prior marijuana use, while simultaneously having no effect on other unimpaired drivers.  The defendant insists that the statute makes “no effort to distinguish between impaired and unimpaired drivers.”

The Drugged Driving Law Does Place a Uniform Restriction on All Drivers


The court held that the language of the statute, its legislative history, and its practical application aims to distinguish between unimpaired motorists and motorists who are under the influence of marijuana.

The principal purpose of R.C. 4511.19 is to criminalize driving a motor vehicle while impaired.  “Driving is a privilege, not a constitutional right,” and, by enacting the “drugged driving” OVI statute, the General Assembly has “set a prohibited amount of marihuana, an illegal substance in Ohio, which may be in one’s system while operating a motor vehicle.”

By criminalizing the act of driving a motor vehicle with more than 35 ng/ml of marijuana metabolites in the driver’s urine, the drugged driving statute places a uniform restriction on all motorists in Ohio.

The defendant argued that theoretical scenarios exist where past marijuana use could possibly result in a driver having 35 ng/ml of marijuana metabolites in his or her urine, yet the driver would not be functionally impaired.

Nonetheless, the court found, there is still a rational connection between the statutory marijuana metabolites standard and impairment.  The Equal Protection Clause “does not require us to conclude that the state has chosen the best means of serving a legitimate interest, only that it has chosen a rational one.”

Unlike some other states (such as Illinois and Arizona), Ohio does not prohibit driving with any amount of a marihuana metabolite in one’s body but rather sets certain maximum limits that may not be exceeded. 

The General Assembly, in constructing the per se statute, expressly considered the arguments of those who claimed that the law lacked a direct correlation between the prohibited amount of marihuana and its metabolite in a driver’s system and impairment.  Two of the bill’s sponsors noted during deliberations on the bill that they had worked closely with forensic toxicologists to establish the precise levels at which driving is prohibited in the statute and that the levels in the bill were not only consistent with federal standards, but that the forensic toxicologists who had participated in setting those levels had unanimously agreed that anyone driving with the levels of the substance listed in the bill definitely would be impaired.

The State has a legitimate interest in promoting highway safety and keeping impaired drivers off public roadways.  The General Assembly acts in furtherance of that goal by enacting legislation which prevents individuals under the influence of marijuana from operating motor vehicles on public roadways.

Differences in treatment based on the use of marijuana before operating a motor vehicle does not impinge upon a fundamental right or burden a suspect class.  “Moreover, the rational basis standard unquestionably supports the General Assembly’s endeavor to maintain safety on public roadways by providing a mechanism by which to prosecute individuals who operate a motor vehicle while under the influence of marijuana.”