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Medical Marijuana and Driving in Ohio

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In June 2016, Ohio became the twenty-fifth state in the country to legalize the use of medical marijuana. Nearly three years later, in January 2019, dispensaries began selling medical marijuana to registered patients. The use of recreational marijuana is still illegal in Ohio.

Being able to legally buy and use marijuana for medical purposes has helped thousands of Ohioans get much-needed relief. However, it is important to understand that even if you have a prescription for medical marijuana, you could face criminal charges if you violate other laws, such as operating a vehicle under the influence (OVI). Using medical marijuana may also be a violation of the terms of your probation.

If you have been charged with a criminal offense related to marijuana (medical or otherwise), a skilled Mason, OH criminal defense lawyer can fight for your rights and your freedom. Read on to learn more about Ohio’s medical marijuana laws — and how you can avoid being charged with a crime for using marijuana.

Ohio Laws on Medical Marijuana

The state of Ohio regulates the use, sale, and purchase of medical marijuana through its  Medical Marijuana Control Program. Pursuant to House Bill 523 — the law that legalized medical marijuana in Ohio — anyone who wants to obtain medical marijuana must follow three steps.

First, you must visit a certified physician to confirm that you have a condition that qualifies for medical marijuana. Currently, only patients with the following medical conditions can be registered to purchase medical marijuana: 

  • AIDS
  • Amyotrophic lateral sclerosis (ALS);,
  • Alzheimer’s disease, cancer;
  • Chronic traumatic encephalopathy;
  • Crohn’s disease; 
  • Epilepsy or another seizure disorder;
  • Fibromyalgia;
  • Glaucoma 
  • Hepatitis C;
  • Inflammatory bowel disease;
  • Multiple Sclerosis (ALS)
  • Pain that is either chronic and severe or intractable;
  • Parkinson’s disease;
  • Positive status for HIV
  • Post-traumatic stress disorder (PTSD);
  • Sickle cell anemia; 
  • Spinal cord disease or injury;
  • Tourette’s syndrome;
  • Traumatic brain injury (TBI); and 
  • Ulcerative colitis

If you have one or more of these conditions, your doctor can submit a recommendation for you to receive medical marijuana to the patient registry. The recommendation may be for up to a 90 day supply of medical marijuana, with up to three refills. You must see a certified physician at least once per year to maintain your status.

Second, after your doctor has entered you into the registry, you will receive an email that asks you to complete your application through the Patient Registry. Each year, you will be required to pay a fee of $50 (or $25 for caregivers) to remain on the registry.

Third, once you receive a Patient & Caregiver Registry card, you can purchase medical marijuana through a dispensary that has been licensed by the state of Ohio’s Board of Pharmacy.

Under this law, only certain types of medical marijuana are legal for use in Ohio. Marijuana can be sold in oil, tincture, capsule, or edible form, as a metered oil, solid preparation, or plant material for vaping, or as patches, lotions, creams, or ointments. It is not legal to smoke medical marijuana.

There are limits on the quantity of marijuana that can be purchased at a single time. Except for patients who are terminally ill, a 90 day supply cannot exceed:

  • Eight ounces (two hundred twenty-six and eight-tenths grams) of tier I medical marijuana;
  • Five and three-tenths ounces (one hundred fifty and three-tenths grams) of tier II medical marijuana;
  • Twenty-six and fifty-five-hundredths grams of THC content in patches for transdermal administration or lotions, creams, or ointments for topical administration;
  • Nine and nine-tenths grams of THC content in oil, tincture, capsule, or edible form for oral administration; or
  • Fifty-three and one-tenths grams of THC content in medical marijuana oil for vaporization.

A violation of the rules governing the use and possession of medical marijuana may result in a patient’s registration being revoked, suspended, restricted, or limited. Alternatively, the state Board of Pharmacy may refuse to renew a patient’s registration.

Can I Be Charged with OVI for Driving on Medical Marijuana?

As of April 2020, there are 101,427 patients and caregivers registered under Ohio’s Medical Marijuana Control Program. If you are one of the tens of thousands of Ohio residents able to legally purchase and consume medical marijuana, you may be curious about what you can and cannot do after you have used marijuana — such as driving.

In Ohio, it is against the law to operate a motor vehicle while under the influence (OVI) of any controlled substance, or with a certain concentration of specified controlled substances (R.C. 4511.19(A)(1)(j).  For marijuana or a metabolite— medical or otherwise — you can be charged with OVI if your urine tests at certain levels pursuant to R.C. 4511.19(A)(1)(j).  Just as in an alcohol concentration case, the higher concentrations result in more severe penalties.   Even without a  urine or blood serum test, you can also be charged with an OVI/DUI if your consumption of marijuana impairs your ability to drive pursuant to R.C. 4511.19(A)(1)(a) (the catch-all provision).

Fortunately, the OVI statute itself provides a possible defense to a prohibited concentration charge of OVI if the marijuana or metabolite was obtained pursuant to a lawful prescription and was being taken as recommended by your doctor or other health professional. This usually, but not always, means as prescribed. 

However, it is important to note that taking a controlled substance as prescribed is not necessarily a defense to the R.C. 4511.19(A)(1)(a) general charge of operating a motor vehicle while under the influence of alcohol and/or drugs of abuse since the prosecution must only prove that the substance ingested adversely affected to an appreciable degree of impairment the defendant’s ability to operate the motor vehicle.  

Simply put, medical marijuana is not always a defense to an OVI.

A law enforcement officer who stops your vehicle on suspicion of OVI may also be able to smell marijuana in your vehicle or on your body. If this occurs, it may be a justification for a search of your vehicle. If marijuana (or another illegal substance) is found in your car, then you could be charged with an OVI — even if you possessed or used marijuana legally.

A skilled Mason, OH criminal defense lawyer can formulate factual and legal defenses to a charge of OVI related to medical marijuana use. In particular, because of how our bodies process marijuana, it may show up on a drug test days or weeks after it was used — well after its intoxicating effects are gone. Depending on the facts of the case, this may be used as a possible defense to an OVI charge related to marijuana.

Can I Use Medical Marijuana If I am on Probation?

According to the most recent statistics from the Office of Criminal Justice Services, there are approximately 230,000 people on probation in Ohio. Probation is a sanction ordered by the court in a criminal case that allows a person to remain in the community. Each sentence of probation carries conditions, which may include jail time, fines, restitution, community service, and/or treatment programs.

While probation conditions may vary, judges often impose terms related to the use of alcohol and/or controlled substances. In some counties, the use of medical marijuana is specifically prohibited in its standard probation conditions. If your probation conditions forbid the use of controlled substances, then you may be charged with a probation violation if a urine test shows evidence that you have consumed marijuana.

Importantly, if you are facing a probation sentence after pleading guilty to or being convicted of a crime, you may be able to request the ability to use medical marijuana if you are currently a registered patient or have a condition listed in Ohio’s medical marijuana laws. Consult with your attorney about your ability to make such a request and the consequences that you may face for violating probation if your request is not granted.

Finally, marijuana is still illegal under federal law. This means that — in theory — you could be charged with a criminal offense for the possession or transport of medical marijuana that is otherwise legal in Ohio. It also means that if you use medical marijuana while on federal probation, you will be charged with a probation violation.

Charged with a Crime in Ohio? We Can Help.

The laws surrounding medical marijuana are complicated. However, it is still a crime to operate a vehicle under the influence of marijuana — even if you are a registered patient. Similarly, you can be charged with a probation violation if you use medical marijuana while on probation unless you are specifically permitted to do so.

The attorneys of Engel & Martin have extensive experience handling a range of criminal cases, including OVI/DUI, drug possession, probation violations, and more. To learn more or to schedule a consultation with a Mason, OH criminal defense lawyer, call our office at 513-445-9600 or email us anytime.

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