Under ORC 4511.191, the law states that by driving a car on a public road, this person automatically consents to a blood draw or other chemical test to determine the person's intoxication level. In short, as long as the law enforcement officer believes that you are under the influence of intoxicating drugs, he or she can take your blood or test you. Bottom line, if you get pulled over for drinking and driving, you can either blow into the machine, or refuse and get your license taken away for the time being.
When someone drinks and drives, there are machines to test how drunk the person is. However, what happens when an officer believes that a person is under the influence of marijuana. The officer cannot give the suspect an alcohol blow test. Because law enforcement doesn't have a quick test for marijuana, what can the officer do?
Marijuana Blood Tests
Turns out, Ohio law states that an officer can immediately take the suspect in for a blood sample, and then determine whether the suspect is under the influence of marijuana. The main problem with this law is, since marijuana does not leave the blood stream of a user as quickly as alcohol, does the officer really need to keep the suspect in custody to gather a blood sample? Could the officer just get a regular search warrant, such as the Fourth Amendment requires, and be on his or her way? The officer would have all the probable cause they would need for a warrant—especially if the suspect consented. So why is this a big deal?
Generally, when the officer needs to search something—a person, place, or thing—the Fourth Amendment instructs us that the officer can get a search warrant and then conduct the search. However, when the officer feels as if the evidence will be destroyed or deteriorated by the time a warrant is received, they can conduct the search immediately under the "exigent circumstances" exception. However, per Missouri v. McNeely (2013), the U.S. Supreme Court reasoned that, to gather blood without a warrant, the officer would need to show that he or she would not have been able to quickly secure a search warrant. Before this case was decided, law enforcement believed that the same "alcohol deterioration of the blood" argument would suffice for the "marijuana deterioration of the blood" argument. Thus, officers could use exigent circumstances to get a blood draw for a suspected marijuana OVI offender. McNeely changed this belief.
Other State Case Law
Although Ohio's implied consent law remains the same, one state in particular has challenged its own state law—Nevada. Nevada is a state that has an implied consent law like Ohio.
In Byars v. State, which was decided a few weeks ago, the Nevada Supreme Court decided that the reasoning in McNeely should sound in Nevada as well. Simply put, even though Nevada has an implied consent law in place, and although law enforcement would have to wait to get a blood sample for a marijuana OVI suspect, the officer has to show that he or she could not quickly gather a warrant. Otherwise, the officer has to obtain a warrant before any blood sample is taken from the suspect. In addition to agreeing with the U.S. Supreme Court's McNeely decision, the Nevada Supreme Court reasoned that because marijuana remains in the system longer than alcohol, there is no immediate indication of evidence being destroyed (body naturally filtering out the THC), and thus law enforcement would not be able to use exigent circumstances on this argument alone. Furthermore, without any evidence that a search warrant could not be quickly procured, the suspect's blood could not be taken without a typical search warrant.
This is big news for other states with implied consent laws. We could possibly see a case like this in Ohio soon.
If you have been charged with an OVI of any type, contact The Meranda Law Firm, LTD., where our dedicated and diligent lawyers will defense your rights and work to resolve your case.