One toke over the line? Clearing the air on Ohio’s marijuana laws

In the popular Netflix series Atypical, an unhappy housewife has a fling with a younger man. During an afternoon tryst, he gets out of bed and lights up a bong.

She says: “You’re doing drugs in the middle of the day?”

He says: “It’s not drugs. It’s marijuana.”

Law enforcement officials in Ohio would beg to differ. But with a raft of recent changes in state and local marijuana laws, many Ohio citizens are confused as to what is an arrestable offense and what isn’t when it comes to lighting up weed for recreational use. It’s time to clear the smoke on Ohio’s marijuana enforcement.

Jon Saia, a Columbus attorney who specializes in defending OVI cases (operating a vehicle under the influence of alcohol or drugs), says too many Ohioans believe that police no longer issue fines or make arrests for marijuana possession and use. That’s not true, and motorists with pot in their vehicles and college students partying on campus are particularly vulnerable, he says. What’s more, he says, having a state-issued medical marijuana card will not excuse a user found high on marijuana while driving.

The courts also continue to uphold the rights of employers in Ohio or any state to fire employees who fail marijuana drug tests, even if they have been approved for medical use of the substance. In the 2012 Michigan case of Casias v. Wal-Mart Stores, an employee who was using marijuana to control the pain of his brain cancer was fired for testing positive after being injured by a shopping cart. A federal appeals court in Cincinnati sided with Wal-Mart in its decision.

Ohio has a reputation nationally for being tough on marijuana possession and use, especially in the African-American community. On average, more than 20,000 Ohioans a year are arrested for possession of marijuana, according to the Drug Policy Alliance, a non-profit organization of drug policy experts. And blacks in Ohio are four times more likely than whites to be arrested for marijuana possession, according to the ACLU of Ohio.

Despite these statistics, Saia says, it’s a myth that Ohio’s jails are crowded with people arrested for possessing small amounts of marijuana. No one will go to jail for having a couple of joints. Since Ohio “decriminalized” marijuana in 1975, possession of less than 100 grams (about 3.5 ounces or enough to roll into roughly 200 joints) is a minor misdemeanor punishable by a $150 fine. Minor misdemeanors do not create a criminal record in Ohio and are usually treated like traffic offenses with a ticket and a fine.

However, unlike states such as California and Colorado, Ohio has no state law legalizing the possession of any amount of marijuana for "recreational" use. Medical use of marijuana for 21 specific health conditions was legalized in Ohio three years ago, as long as patients are registered with the state. But registered patients can use medical marijuana only in prescribed ways — like vaping — and smoking a “joint” is not one of them, Saia says. Having a medical marijuana card issued from any state may be a defense to possession of small amounts of marijuana in Ohio. But having a medical marijuana card from Ohio or any state will not protect employees who fail drug tests.

Further adding to the confusion in Ohio, Gov. Mike DeWine signed a bill in July legalizing the sale of CBD and hemp products. These are derivatives of marijuana but contain only limited amounts of THC, the chemical that gets users high.

Laws have changed recently at the local level as well. Some localities in Ohio — including Columbus, Cleveland, Cincinnati and, yes, even the tiny city of Vermilion — have announced that they will no longer fine or arrest people for misdemeanor use of marijuana.

But anyone caught possessing marijuana outside these places or any city in Ohio could be fined or arrested by sheriff’s deputies, who have jurisdiction in the state’s unincorporated areas. Enforcement of marijuana laws “hasn’t changed in our position at all,” says Bob Cornwell, executive director of the Buckeye State Sheriffs’ Association.

Cornwell notes that caregivers who supply registered patients with medical marijuana must also have a state-issued medical marijuana card. If caregivers are pulled over in traffic and found in possession of marijuana without a medical card, they, too, can be fined or arrested, he says.

Regardless of recent state actions, the federal government “is still adamant about enforcing marijuana laws and considers it a gateway drug” to more dangerous substances, says David Walsh, an associate professor of management at Miami University. The federal government insists on a “drug-free workplace,” including marijuana, for all federal contractors and facilities.

Despite the legalization of marijuana for recreational use in 11 states, arrests for marijuana possession continue to climb nationally, with more than 608,000 arrests in 2017, according to the latest FBI statistics.

Possession of larger amounts of marijuana can raise the suspicion of marijuana drug trafficking and carry harsher fines and penalties, Saia says. Even sharing pot in small amounts can result in marijuana charges. In Ohio law, a “gift” of marijuana (transferring marijuana to another person with no exchange of money) can result in a drug trafficking charge. A first offense of 20 grams or less is charged as a minor misdemeanor. Subsequent offenses of pot sharing, or offenses committed near a school or in the presence of minors, are charged as misdemeanors of the third degree, carrying a maximum penalty of $500 fine and/or 60 days in jail.

Regardless of Ohio law, employers continue to discipline or fire employees who are users of marijuana in any quantity. Changes in state or local laws “don’t confer any right not to be fired by a private company for using marijuana or testing positive for marijuana,” Walsh says. The courts have consistently upheld employers “when employees get fired for failing a drug test, whether for medical purposes or recreational use.”

But as more states approve marijuana for recreational use, exactly how much of the tested drug indicates an employee’s impairment will become a heated debate in the near future, says Tony Fiore, a Columbus attorney who serves as director of government affairs for the Ohio Society of Human Resources Management.HCH

THC is quickly metabolized but its byproducts can be found in the bloodstream for up to three days and up to a month in urine, studies show.

Currently, employees injured on the job in Ohio can test positive for the presence of marijuana and still collect worker’s compensation if they can prove that the marijuana use had nothing to do with their injury.

“I think states are turning more toward an impairment standard, just as they do now with alcohol,” Fiore says. “But it’s tough now to determine exactly what that standard looks like.”

Support for Ohio Civics Essential is provided by a strategic grant from the Ohio State Bar Foundation to improve civics knowledge of Ohio adults.

The views expressed herein do not necessarily represent those of the Ohio State Bar Foundation.

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