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Joint You Smoked Last Week May Come Back To Haunt You

Jim Phillips, Athens News Senior Writer, 25th August 2006

In June 2003, an Athens County jury acquitted an Athens area woman of aggravated vehicular homicide in connection with a car crash that killed a Shade man.

A blood test allegedly showed that Farah Holter had chemical byproducts of recent cocaine use in her system at the time of the crash. Her attorney, however, using expert medical testimony, persuaded the jury that those byproducts, or "metabolites," were not impairing Holter's ability to drive.

Holter was convicted of only a misdemeanor charge of negligent manslaughter. If her case came up today, however, the outcome might be different.

Effective Aug. 17, the state of Ohio has made it a criminal offense to have certain levels of drug metabolites in your system, regardless of how impaired you may or may not be.

Police still aren't supposed to be able to order a blood or urine test without some evidence of impairment. But some observers worry that Senate Bill 8 will result in people being charged criminally for the lingering evidence of prior drug use.

"There are obviously going to be more cases," predicted K. Robert Toy, an Athens defense attorney who handles a fair amount of DUI cases. "I call this the Defense Attorney Relief Act of 2006."

According to a handout from Athens County Municipal Judge William Grim, including information from the Ohio Department of Health's Bureau of Alcohol and Drug Testing, S.B. 8 sets "per se" prohibited blood and urine levels for certain drugs.

In plain English, if you have the listed level of the drug in your system after last Thursday, you're breaking state law regardless of your impairment level.

Drugs cited in the law include marijuana and its metabolites. S.B. 8 sets illegal blood levels for marijuana (presumably its active ingredient THC), as well as two different levels for marijuana metabolites, which are breakdown products of THC that can show up in the blood long after the intoxicating effects of marijuana use have worn off.

Before S.B. 8, according to Athens County Assistant Prosecutor Colleen Flanagan, there were no defined illegal bodily levels in Ohio for many drugs of abuse, other than the 0.08 milligrams per decaliter of alcohol in the bloodstream that makes one legally drunk.

Therefore, she said, the presence of heroin or cocaine in a person's blood could be used as an aggravating factor in another crime, or as supporting evidence for a drug-possession charge, but wasn't itself a crime.

Toy said he supports keeping people who are high on marijuana out of the driver's seat. However, he said, it's known that marijuana metabolites linger in the bloodstream long after the high wears off, which could lead to people who are not impaired being punished for driving with something in their bodies that poses no threat to the public.

"You may be convicted of DUID (driving under the influence of drugs) without being impaired," he said. "That's the issue."

He added that while police officers are supposed to establish that a suspect is impaired before asking him to undergo blood or urine testing, in practice he believes officers will use very flexible standards for finding evidence of impairment.

As a defense attorney, Toy said, he has seen cases in which an officer testified that a suspect showed all six "clues" of being impaired during sobriety tests (follow a pen with your eyes, walk a straight line, stand on one leg, etc.)

"Then they give them a drug test and - guess what? They shouldn't have had six clues (based on their drug levels)," Toy said. The clear implication, he suggested, is that officers in the field sometimes see what they want to see in a field sobriety test, in order to justify a blood or urine test.

He noted that he has never seen a field sobriety test performed on videotape, though many police officers have video cameras on their cruisers to record vehicle stops.

Toy said he also worries that officers may seek blood and urine testing on people they think look like probable dope smokers.

"I see a lot of people bopping along wearing nose rings being stopped and given the test without evidence of impairment," he predicted.

Flanagan noted, however, that S.B. 8 doesn't criminalize the drugs it cites, because their use was already a criminal offense - it just wasn't illegal to have evidence of that use in your bloodstream.

"I would say, first of all, that all of these drugs would be illegal to use to start with," she said. She added that she would tend to trust the word of a police officer who reported that a suspect had shown evidence of impairment on a field sobriety test.

Flanagan said she believes S.B. 8 was needed. "I think it fills a gap," she said. As an example where the new law would be useful, she offered a scenario in which someone crashes a car, but is too injured to undergo a field sobriety test.

Blood samples taken at a hospital could be used to establish drug use by the suspect, which could then be used to support a criminal charge. Before S.B. 8, the presence of the drugs in the person's system alone would not have been the basis for a charge, she noted.

Flanagan pointed out that the new law also extends, from two hours to three hours after an alleged offense, the time period in which police can take a blood, urine, or breath sample for testing, which she said will also be a change welcome to law enforcement.

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