Marijuana possession legal in Ohio starting today; Uncertainty remains

Credit: Bill Lackey

Credit: Bill Lackey

Starting today, Ohioans age 21 and over can legally possess limited amounts of marijuana as Issue 2, which voters overwhelmingly approved in November, goes into effect.

But the law change comes with a haze of uncertainty about how certain provisions will be enforced, and as lawmakers wrangle over last-minute revisions.

Ohio Gov. Mike DeWine Wednesday evening held a press conference urging the General Assembly to pass a bipartisan compromise that would speed up how soon marijuana could legally be sold, among other things.

“We do not need an expanding black market,” DeWine said.

The Ohio Senate approved a revision to the law Wednesday evening, tweaking the language previously approved by voters to raise the tax on sales, reduce home grow limits and lower certain THC levels. The changes would still need to be approved by the House and signed by DeWine before going into effect.

In the meantime, Issue 2 is the law of the land.

One snag with Issue 2 as passed by voters: The law starting today allows possession of up to 2.5 ounces of marijuana in plant form or up to 15 grams in extract form and growing plants at home. But there’s no legal way to buy it. The regulatory framework allowing recreational marijuana dispensaries as mandated by Issue 2 would not be in place until mid-2024.

The Senate proposal backed by DeWine would allow existing medical marijuana dispensaries to sell recreational marijuana 90 days after it’s signed by the governor. It would also limit home growing to six plants per household. It also sets a 15% tax rate, which is higher than Issue 2 but lower than previous proposals.

Issue 2 also prohibits using it in public spaces, like at a bus stop, in a park or walking down the street. Of-age Ohioans who consume in prohibited areas run the risk of getting a minor misdemeanor, as Issue 2 currently reads.

Enforcement considerations

The Ohio Prosecuting Attorney Association recently released an analysis on the law noting some issues and enforcement challenges.

For one, it notes that the law allows growing marijuana “within a secured closet, room, greenhouse, or other enclosed area in or on the grounds of the residence that prevents access by individuals less than twenty-one years of age, and which is not visible by normal unaided vision from a public space.”

Issue 2 as passed by voters allows up to six plants per adult and up to 12 plants per household But the memo says a single plant can produce up to 17.5 ounces of cannabis per plant which, once processed, would far exceed the allowed limit of 2.5 ounces. Home growers are prohibited from selling marijuana, and can give it away in only limited quantities.

Another issue is traffic stops, the prosecutors memo notes. A K-9 officer alerting to the smell of marijuana, as it’s trained to do, would no longer be probable cause of criminal activity by itself. An officer smelling burnt marijuana, or the dog alerting to cannabis after the driver says there is none on the car, could still be probable cause.

Local police departments tell the Dayton Daily News they have received no guidance from the state and are hashing out policies on their own.

“Our department just met this morning regarding it and are still working on a policy/procedure. Nothing has been announced to us at this time,” said Kettering Police Department Public Information Officer Cynthia James on Wednesday.

Meanwhile, Ohioans who have been recently charged with marijuana possession may have grounds to have their charges dismissed, said Joe Suhre, a defense attorney with offices in Dayton, Columbus and Cincinnati.

“My experience has been generally speaking with prosecutors’ offices and with courts that have been cases pending for conduct that subsequently becomes legal… generally speaking it’s able to be resolved successfully,” Suhre said. “In other words, my experience has been that they’ll generally dismiss it now. But that’s not a guarantee.”

The Senate measure backed by DeWine would allow anyone who pleaded guilty to possession of under 2.5 ounces of marijuana to get their record expunged.

Driving under the influence

Suhre said some of the challenges with Issue 2 aren’t entirely new; legal professionals have been working on cases related to medical marijuana since the state’s medical program began.

For example, the law prohibits using marijuana in a vehicle, or operating a vehicle while under the influence of cannabis. But there is no breathalyzer for weed.

The National Highway Traffic Safety Administration (NHTSA) has validated some field sobriety tests to detect impairment by alcohol. These tests don’t translate to marijuana intoxication, Suhre said.

One NTHSA test, called the “lack of convergence” test, relies on eye movement patterns. It can be used to test motorists for marijuana use. Suhre said roughly 10% of the general population cannot perform the eye movements requested even when they’re sober.

Oftentimes, police can also request a urine sample if they suspect intoxication by marijuana. But Suhre said marijuana metabolites stick to fat tissues in the body and take several days or longer to completely leave the body.

“Any toxicologist that will testify, and I have cross examined dozens of them over the years, will say, ‘I cannot tell you because of a metabolite level if someone is under the influence because the urine doesn’t correlate like blood does,’” Suhre said.

An Ohioan could lawfully use marijuana on a Saturday, Suhre said, and be involved in a car crash while driving sober the following Monday. This Ohioan could face charges related to impaired driving if they consent to a urine sample and see results higher than the legal limit of 35 nanograms per milliliter for marijuana metabolites.

Other limitations on usage

Smoking marijuana is banned in indoor public places or places of employment by the state’s indoor smoking ban.

Marijuana is still illegal under federal law, so possession on federal property is still a crime. This includes on Wright-Patterson Air Force Base as well as certain areas around the base such as base housing areas like Page Manor.

Federal employees are also still prohibited from using cannabis products.

Issue 2 allows any employer to to establish and enforce drug-free workplaces, prohibiting employees from using marijuana and disciplining employees for doing so.

Certain renters may also not be able to use marijuana at home. The bill authorizes landlords to include a prohibition on the use of cannabis in lease agreements.

And federal law prohibits people who use marijuana from receiving, possessing or purchasing a firearm.

Every purchase from a licensed gun dealer requires someone to fill out a background check asking if the buyer is “an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substances.”

The form notes that use or possession of marijuana is still illegal under federal law even if it’s legalized by the state. It also notes that lying on the form is a felony under federal law.