OHIO MEDICAL MARIJUANA PATIENTS AND RISKS BEHIND THE STEERING WHEEL.

• Author: Mills, Caroline

INTRODUCTION I. MARIJUANA AND DRIVING A. Marijuana B. Marijuana's Effects on Driving C. Problems with Testing for Marijuana Impairment II. RATIONALITY OF OHIO MARIJUANA OVI LAW A. Rational Basis Standard B. Ohio Marijuana OVI Law C. Rational Basis Scrutiny and Ohio Marijuana OVI Law III. MEDICAL MARIJUANA IN OHIO A. Medical Marijuana Products B. Ohio Medical Marijuana Control Program IV. OHIO'S MEDICAL MARIJUANA PATIENTS' RISKS WHEN DRIVING A. Actual Impairment from Medical Marijuana B. Unimpaired from Medical Marijuana, But Testing Positive for Marijuana V. How OHIO CAN IMPROVE A. Legal Reform B. Drug Recognition Expert Training C. Physicians D. Public Education E. Research CONCLUSION INTRODUCTION

Each time a medical marijuana patient drives in Ohio, the patient may be illegally operating a vehicle while under the influence of marijuana (marijuana OVI). It is not a novel idea that a patient actually impaired by medical marijuana should not be driving, but the Ohio marijuana OVI law criminalizes driving with a certain amount of marijuana detectable in a driver's bodily fluids. (1) Ohio may charge a patient with a marijuana OVI without proof beyond a reasonable doubt of actual impairment. Instead, a patient's blood or urine test that is positive for a prohibited amount of marijuana satisfies the crime of a marijuana OVI in Ohio. The issue is that the prohibited amount of marijuana detected in blood or urine does not correlate with actual impairment. (2) Marijuana detected in patients' blood or urine does not indicate that those patients really are driving impaired.

This Note incrementally explains the risks behind the wheel for patients enrolled in the Ohio Medical Marijuana Control Program (3) (OMMCP) and the challenges that all parties involved must solve for patients to drive safely without fear of unjust punishment.

This Note begins with the basics of marijuana, how marijuana affects driving, and the difficulties testing for marijuana impairment. Second, this Note briefly explains rational basis scrutiny and then applies it to the Ohio marijuana OVI law. Third, this Note addresses the relevant parts of the OMMCP laws that facilitate the medical marijuana product and information about the product to the patient. Then, the fourth Part of this Note opines that the Ohio marijuana OVI law wrongly captures medical marijuana patients who have marijuana in their body but are unimpaired. Lastly, this Note argues that a permissible-inference law is fairer and more scientifically valid than a per se law for marijuana OVIs and recommends actions for parties involved in the OMMCP and law enforcement.

1. MARIJUANA AND DRIVING

   1. Marijuana

      Marijuana is a psychoactive drug derived from the leaves and flowers of the Cannabis sativa plant. (4) Delta-9-tetrahydrocannabinol (THC) is the chemical in marijuana most responsible for psychoactive effects. (5) Common effects of THC include relaxation and pleasant experiences, though users might also suffer unpleasant experiences of anxiety, schizophrenia, fear, or panic. (6)

      Health organizations consistently warn that THC has a short-term effect on impairing attention, memory, spatial orientation, and learning. (7) Cannabidiol (CBD), another dominant chemical found in cannabis, lacks the impairing characteristics of THC. (8)

      "Medical marijuana" refers to marijuana used with the intent of treating symptoms and conditions of illness. (9) Medical marijuana is derived from a variety of cannabis plants, compounded into a non-standardized dose, and presented through both smoking and non-smoking forms for consumption. (10) There is substantial evidence that medical marijuana has therapeutic benefits for the treatment of chronic pain in adults, nausea and vomiting after chemotherapy, and muscle spasticity in patients with multiple sclerosis. (11) The FDA approved synthetic THC-active pills, dronabinol and nabilone, to treat chemotherapy-induced nausea and vomiting and to improve appetite for AIDS patients, and the FDA recently approved a CBD-active liquid, Epidolex, to treat childhood seizure and epilepsy. (12) The FDA has approved only these specific drugs, (13) and the types of medical marijuana this Note later discusses are not approved by the FDA.

   2. Marijuana's Effects on Driving

      Medical marijuana can impair safe driving skills. (14) Judgment, motor coordination, and reaction time are major driving skills that THC significantly impairs. (15) One of the most consistent manifestations of marijuana impairment on the road is that drivers under the influence of marijuana tend to sway into other lanes. (16) For example, drivers are likely to engage in "lane weaving, driving on the wrong side of the road, drifting, following too close, driving a large distance from the vehicle ahead, [and] not responding to questions." (17) In an experimental study, drivers under the influence of marijuana adopted strategies to compensate for their perceived level of impairment. (18) Likewise, the American Medical Association found that drivers under the influence of marijuana drove slower and under the speed limit more frequently than those not under the influence of marijuana, and drove with greater space between the preceding vehicle. (19) The studies, mostly controlled, illuminate how marijuana affects driving--but the question presented is how can law enforcement actively test for marijuana impairment on the road?

   3. Problems with Testing for Marijuana Impairment

      The key problem with testing for marijuana impairment is the lack of technology that can detect THC impairment and the lack of a scientifically agreed-upon level of THC that could cause impairment. (20) Drivers' level of detectable THC does not correlate with their extent, if any, of impairment. (21) Quite notably, people may not show symptoms of impairment when their THC levels are high, and may actually show symptoms of impairment when their THC levels are low. (22) If a driver consumes marijuana frequently, such as when a patient consumes daily medicinal doses, law enforcement may detect THC one week after consumption. (23) Therefore, even if there is a great accumulation of THC in a driver's body, the driver may actually be driving unimpaired. (24)

      In Commonwealth v. Gerhardt, (25) the Massachusetts Supreme Court decided that police cannot conclude that a driver is impaired from marijuana after the driver's poor performance on a field sobriety test (FST). (26) The court held, however, that the driver's performance on an FST is an observation that is admissible evidence for determining if the driver was impaired. (27) In that case, Thomas Gerhardt was pulled over because his vehicle's rear lights were off. The officer subsequently smelled marijuana burning. (28) Gerhardt admitted to the officer that he smoked about one gram of marijuana three hours earlier. (29) The officer then asked Gerhardt to exit his vehicle and instructed him to complete three FSTs: the horizontal gaze nystagmus test, the nine-step walk-and-turn test (WAT), and the one-leg-stand test (OLS). (30) Gerhardt failed the WAT and OLS, both tests of "an individual's balance, coordination, dexterity, ability to follow directions, and ability to focus attention on multiple subjects at the same time." (31) The court held that Gerhardt's failure on the WAT and OLS was admissible evidence because the skills the two tests assess are skills that are necessary for safe driving. (32) FSTs, therefore, are valid tests for officers to employ when they have a suspicion that a driver is under the influence of marijuana because the tests are designed to determine if a person has the ability to drive safely, not if a person is actually under the influence of marijuana. (33) Unlike the proven correlation between FSTs and alcohol impairment, FSTs do not have a proven correlation with marijuana-intoxication levels that cause impairment. (34)

      The correlation that allows law enforcement to determine if a driver is too impaired by alcohol to drive safely is the result of a long scientific history of developing a standard of impairment of alcohol, a standard that is not yet developed for impairment of marijuana. (35) The inebriation-inducing properties of alcohol were well-understood and legitimized by systemic case-control studies. (36) A per se standard of impairment for alcohol was possible because there was a nationally recognized level of alcohol in a driver's body that correlated with an increased crash risk. (37)

      The alcohol model of developing a standard of impairment is not informative for developing laws for marijuana-impaired driving because there is not a significant relationship between THC levels in a driver's body and an increased crash risk. (38) For an impairment law that conditions criminality on the amount of a drug in a driver's body to be valid, there must be a scientifically understood level of the drug in a driver's body that causes impaired driving. (39) Research has not yet established a relationship between a specific THC level and impairment. (40)

      Additionally, the underlying method of determining alcohol impairment is inconsistent with marijuana impairment because alcohol and THC molecules function very differently. (41) In terms of solubility, alcohol is small and water-soluble while THC is large and fat-soluble. (42) Therefore, alcohol molecules transverse the blood-brain barrier much faster than THC molecules and create an equilibrium of alcohol molecules in a person's blood and their brain. (43) On the other hand, THC molecules transverse the blood-brain barrier much slower. Instead, THC molecules diffuse into fatty tissue, such as a person's heart, lungs, and brain where the THC molecules are active beyond the time frame when marijuana may be detectable in blood. (44)

      Marijuana and alcohol also differently affect drivers' behavior. Most importantly, the behavioral effects of marijuana vary by individual and their tolerance and consumption method, while...