[Cite as State v. Doane,
2020-Ohio-900.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. 19CA05
:
JOY DOANE :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Mount Vernon
Municipal Court, Case No. 18TRC03864
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 9, 2020
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
P. ROBERT BROEREN SAMUEL H. SHAMANSKY
MOUNT VERNON LAW DIRECTOR DONALD L. REGENSBURGER
BRITTANY A. WHITNEY COLIN E. PETERS
5 North Gay St., Suite 222 ASHTON C. GAITANOS
Mt. Vernon, OH 43050 523 South Third St.
Columbus, OH 43215
Knox County, Case No. 19CA05 2
Delaney, J.
{¶1} Appellant Joy Doane appeals from the April 11, 2019 Sentencing Entry of
the Mount Vernon Municipal Court, incorporating the Court’s March 27, 2019 Journal
Entry overruled her motion to suppress. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
Traffic stop, suspicion of marijuana use, and urine test
{¶2} This matter arose on October 12, 2018, around 5:17 p.m., when Ptl. Josh
Jones of the Fredericktown Police Department was monitoring traffic on Mount Vernon
Avenue south of Kokosing Street. He observed a vehicle operated by appellant and
performed a random registration check. Dispatch advised appellant’s registration was
expired and Jones therefore performed a traffic stop.
{¶3} Jones approached the vehicle on the driver’s side and appellant opened
her door. He asked for her license and proof of insurance, and appellant provided her
registration. The officer asked again for appellant’s license and proof of insurance; she
provided her license but no proof of insurance. While standing at the driver’s door, Jones
recognized the odor of marijuana emanating from the vehicle. At first appellant denied
there was marijuana in the vehicle, then admitted she had just smoked with a friend “five
or ten minutes ago.” She pulled a “joint” from her jacket pocket which was burnt on one
end. Jones instructed appellant to place the “joint” on the front seat and to step out of the
vehicle. He decided to ask appellant to submit to standardized field sobriety tests
because she seemed lethargic and Jones suspected she was under the influence. After
completing field sobriety tests, Jones arrested appellant for O.V.I.
Knox County, Case No. 19CA05 3
{¶4} Upon his search of appellant’s vehicle, he found a purse containing
suspected marijuana and drug paraphernalia.
{¶5} Appellant was transported to the Knox County Jail and voluntarily submitted
to a urine test witnessed by a female deputy.
{¶6} On January 10, 2019, Jones received the results of analysis of the urine
test stating the sample was positive for “11-nor-9-carboxy-tetrahydrocannabinol
(marihuana metabolite) positive. Results greater than 200 ng/mL.”
{¶7} Appellant was cited by Uniform Traffic Ticket (U.T.T.) with O.V.I. pursuant
to R.C. 4511.19(A)(1)(a) and (A)(1)(j)(viii)(II), a misdemeanor of the first degree, and one
count of expired plates, a minor misdemeanor.1 Appellant entered pleas of not guilty.
Suppression hearing: focus on effect of marijuana metabolite
{¶8} On February 12, 2019, appellant filed a motion to suppress the urinalysis
because it was not performed in accordance with the applicable regulations and moved
the trial court to find R.C. 4511.19(A)(1)(J)(viii)(II)--the marijuana-metabolite per se
statute--unconstitutional. The matter proceeded to an evidentiary hearing on March 25,
2019, and the following evidence was adduced.
{¶9} Jones testified he has training and experience in detection of impaired
drivers and is a certified Drug Recognition Expert (D.R.E.). He acknowledged that during
field sobriety tests, he investigates whether a driver is under the influence of marijuana
or T.H.C., not a marijuana metabolite. As a D.R.E. officer, he is not trained in the effects
of marijuana metabolite on a driver’s level of impairment.
1Appellant was also cited for marijuana possession and drug paraphernalia, but the
outcome of the criminal offenses is not before us in the record.
Knox County, Case No. 19CA05 4
{¶10} A criminalist from the Ohio State Highway Patrol crime lab testified as an
expert about her analysis of appellant’s urine sample. The criminalist is certified in drug
and alcohol testing by the Ohio Department of Health. She used an immunoassay to
screen the sample, then used gas chromatography mass spectrometry to determine that
the sample contained greater than two hundred nanograms per milliliter of marijuana
metabolites. She did not report an exact figure because any amount over two hundred is
outside the calibration range of her testing equipment. The criminalist acknowledged on
cross-examination that “marijuana metabolite” is not a measure of T.H.C. but is instead a
physiological byproduct created after the body processes T.H.C.
{¶11} Via Journal Entry filed March 27, 2019, the trial court overruled appellant’s
motion to suppress, finding that appellee established that all statutory requirements and
Ohio Department of Health regulations were substantially complied with. Further, the trial
court found R.C. 4511.19(A)(1)(J)(viii)(II) is not unconstitutional.
{¶12} The matter proceeded to trial by jury. Appellant was found not guilty of the
O.V.I. violation pursuant to R.C. 4511.19(A)(1)(a) and was found guilty of the marijuana-
metabolite per se violation pursuant to R.C. 4511.19(A)(1)(j)(viii)(II).2 The trial court
imposed first-time O.V.I. penalties, including completion of a 3-day Driver Intervention
Program.
{¶13} Appellant now appeals from the judgment entry of conviction and sentence,
incorporating the trial court’s decision overruling her motion to suppress.
{¶14} Appellant raises one assignment of error:
2Appellant was found guilty by the trial court of the minor-misdemeanor offense of expired
registration.
Knox County, Case No. 19CA05 5
ASSIGNMENT OF ERROR
{¶15} “APPELLANT’S CONVICTION FOR O.V.I. FOR HAVING A PROHIBITED
LEVEL OF MARIHUANA METABOLITE DEPRIVED HER OF EQUAL PROTECTION
AND DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES AND
OHIO CONSTITUTIONS.”
ANALYSIS
{¶16} In her sole assignment of error, appellant argues that R.C.
4511.19(A)(1)(j)(viii)(II), the marijuana-metabolite per se violation, is unconstitutional and
deprived her of equal protection and due process of law. We disagree.
{¶17} Appellant was convicted of violating R.C. 4511.19(A)(1)(j)(viii)(II), which
states:
No person shall operate any vehicle, streetcar, or trackless
trolley within this state, if, at the time of the operation, any of the
following apply:
…
Except as provided in division (K) of this section, the person
has a concentration of any of the following controlled substances or
metabolites of a controlled substance in the person's whole blood,
blood serum or plasma, or urine that equals or exceeds any of the
following:
…
Either of the following applies:
…
Knox County, Case No. 19CA05 6
(II) As measured by gas chromatography mass spectrometry,
the person has a concentration of marihuana metabolite in the
person's urine of at least thirty-five nanograms of marihuana
metabolite per milliliter of the person's urine or has a concentration
of marihuana metabolite in the person's whole blood or blood serum
or plasma of at least fifty nanograms of marihuana metabolite per
milliliter of the person's whole blood or blood serum or plasma.
{¶18} There is a strong presumption that statutes are constitutional. State v.
Anderson, 57 Ohio St.3d 168,
566 N.E.2d 1224 (1991). Appellant argues that the
presence of marijuana metabolite in a driver’s urine cannot be linked to impairment, and
consequently a risk to other drivers and society in general, because marijuana
metabolites are merely byproducts of marijuana use at some point in the past. This
argument and variations have been examined and rejected by other districts, and we find
no reason in the instant case to take a different approach. The presence of marijuana
metabolites in a driver’s urine in certain concentrations is presently prohibited by the
legislature. As noted by the Sixth District Court of Appeals, “[w]hile this distinction may
have merit, the legislature has nevertheless chosen to view all metabolite presence the
same and to prohibit particular concentrations.” State v. Miller, 6th Dist. Fulton No. F-10-
009,
2010-Ohio-5175, ¶ 17 [finding R.C. 4511.19(A)(1)(j)(viii)(II) is not unconstitutionally
vague.]
{¶19} In State v. Ossege, 2014-Ohio-3186,
17 N.E.3d 30 (12th Dist.), the
appellant argued R.C. 4511.19(A)(1)(j)(viii)(II) is unconstitutional due to its conclusive
presumption that one is “under the influence” by virtue of the presence of a marihuana
Knox County, Case No. 19CA05 7
metabolite which may not have any “relationship to being under the influence of, or being
impaired by the use of marihuana.” In Ossege, the Twelfth District reviewed with approval
the decision of the First District Court of Appeals in State v. Whalen, 1st Dist., 2013-Ohio-
1861,
991 N.E.2d 738:
The First District Court of Appeals recently considered and
rejected arguments similar to those now presented by Ossege. State
v. Whalen, 1st Dist., 2013-Ohio-1861,
991 N.E.2d 738.
In Whalen, appellant pled no contest to operating a motor vehicle
with at least 35 nanograms of marihuana metabolite in his urine in
violation of R.C. 4511.19(A)(1)(j)(viii)(II). Appellant also filed a
motion to suppress, arguing R.C. 4511.19(A)(1)(j)(viii)(II)
was unconstitutional. Although appellant's arguments were couched
in terms of vagueness and overbreadth, the court noted his “real
quibble seems to be with the legislative decision to criminalize driving
based upon the presence of a marihuana metabolite that may not
itself cause impairment.” Whalen at ¶ 16. In rejecting appellant's
constitutional challenges, the First District stated:
[T]he presence of a marihuana metabolite in one's system
indicates that one has used marihuana, an illegal drug in Ohio.
Furthermore, THC, the active ingredient in marihuana, leaves the
body relatively quickly. Unlike the case with Breathalyzer tests, which
are commonly administered by police during roadside stops, it may
take some time before police are able to transport and administer a
Knox County, Case No. 19CA05 8
blood or urine test to a suspected drugged driver. Accordingly, the
legislative decision to include marihuana metabolites within the per
se prohibition is not unreasonable.
Whalen at ¶ 16.
We agree with the First District and find the legislature's
decision to include marihuana metabolites within the per se
prohibitions of R.C. 4511.19 is not unreasonable. Id. The General
Assembly has made it illegal to not only operate a vehicle under the
influence of alcohol or a drug of abuse, but also to operate a vehicle
with a proscribed level of alcohol or a drug of abuse in one's
system. See R.C. 4511.19; State v. Mayl, 106 Ohio St.3d 207, 2005-
Ohio-4629, 833 N.E.2d 1216, ¶ 18. R.C. 4511.19(A)(1)(b)-(j)
and (B), the “per se” offenses, prohibit the operation of a motor
vehicle with certain concentrations of alcohol and/or drugs of abuse
in a person's blood, breath, or urine. See State v. Davenport, 12th
Dist. Fayette No. CA2008–04–011, 2009-Ohio-557,
2009 WL
295397, ¶ 11, fn. 2. R.C. 4511.19(A)(1)(j)(viii)(II), like the other per
se offenses, simply defines the point at which the legislature has
determined an individual cannot drive without posing a substantial
danger, not only to himself, but to others. See State v. Barrett, 12th
Dist. Butler No. CA2003–10–261, 2004-Ohio-5530,
2004 WL
2340658, ¶ 15, citing Newark v. Lucas,
40 Ohio St.3d 100, 103,
532
N.E.2d 130 (1988). Contrary to Ossege's arguments, the General
Knox County, Case No. 19CA05 9
Assembly was well within its police powers to set a prohibited amount
of marihuana, an illegal substance in Ohio, which may be in one's
system while operating a vehicle, and consequently criminalize
driving with more than 35 nanograms of marihuana metabolites in
one's system. Driving is a privilege rather than a constitutional right,
and the state has a legitimate interest in highway safety and keeping
impaired drivers off the road. State v. Tanner, 15 Ohio St.3d 1, 3,
472
N.E.2d 689 (1984); see also Whalen at ¶ 17.
{¶20} Appellant argues the marijuana-metabolite per se statute violates equal
protection guarantees under the United States and Ohio constitutions. In an equal
protection claim, government actions that affect suspect classifications or fundamental
interests are subject to strict scrutiny by the courts. Eppley v. Tri–Valley Local School
Dist. Bd. of Edn., 122 Ohio St .3d 56, 2009–Ohio–1970, ¶ 14. In the absence of a suspect
classification or fundamental interest, the state action is subject to a rational basis
test. Id. Under the rational basis test, we will uphold the statute if it bears a rational
relationship to a legitimate governmental interest. Adamsky v. Buckeye Local School
Dist.,
73 Ohio St.3d 360, 362 (1995).
{¶21} Appellant acknowledges that the rational-basis standard of review applies,
and that the state of Ohio has a legitimate interest in highway safety and keeping impaired
drivers off the road. She argues, though, that the marijuana-metabolite per se statute
does not bear a rational relationship to Ohio’s interest in highway safety because there is
no scientifically proven link between the type of marijuana metabolite found in appellant’s
urine and impairment which puts other persons on the road and society at large at risk.
Knox County, Case No. 19CA05 10
{¶22} Pursuant to the rational-basis test, the statute survives constitutional
scrutiny if it is reasonably related to implementation of a legitimate government
interest. State v. Lowe, 112 Ohio St.3d 507, 2007–Ohio–606, ¶ 18. It is well-established
in Ohio, and appellant fully acknowledges, that the prohibition of impaired driving is
reasonably related to effectuate government interest in reducing hazard presented to the
travelling public and the greater community of harm. Columbus v. Brown, 10th Dist. No.
05AP–344, 2005–Ohio–6102, ¶ 11.
{¶23} We are unwilling to agree with appellant’s underlying premise that the
prohibition against concentrations of marijuana metabolite is not reasonably related to the
state’s interest in protecting people on the road. In State v. Topolosky, 10th Dist. Franklin
No. 15AP-211, 2015-Ohio-4963, at ¶ 33, the appellant made the same argument: there
is no proven link between the specific type of marijuana metabolite found in the
appellant’s urine and an actual impairment of driving ability that would create a danger to
other drivers and society in general. The Tenth District concluded that regardless of that
premise, the statute does not violate constitutional guarantees of equal protection or due
process:
The legislature has selected, as the discriminating factor in a
determination of presumed impairment under the marijuana OVI per
se statute, a level of metabolite defining the point at which the best
evidence before the legislature indicated that an individual cannot
operate a motor vehicle without posing a substantially increased risk
of harm. State v. Ossege, 12th Dist. No. CA2013–11–086, 2014–
Ohio–3186, ¶ 33, fn. 4. Again, Topolosky has presented no expert
Knox County, Case No. 19CA05 11
testimony to rebut the legislature's articulated and supported
conclusion that marijuana use results in impaired driving
and metabolites reflect an impairing level of marijuana use by the
person testing at or above the statutory threshold. While Topolosky
discusses foreign-state cases disagreeing with this proposition to
varying degrees, the conclusions of other courts on disputed factual
issues do not bear the same persuasive weight as legal discussions
and rationales.
{¶24} We find no reason to reach a different result in the instant case. Further, the
appellant in Topolosky cited the same Michigan and Arizona cases as appellant in the
case sub judice, but the Tenth District found both cases distinguishable and inapplicable
to the Ohio statute. 2015-Ohio-4963 at ¶ 39.
{¶25} For the foregoing reasons, we agree with those district courts of appeal
which have found that the marijuana metabolite per se statute is not unconstitutional on
equal protection or due process grounds. Appellant’s sole assignment of error is thus
overruled.
Knox County, Case No. 19CA05 12
CONCLUSION
{¶26} Appellant’s sole assignment of error is overruled and the judgment of the
Mount Vernon Municipal Court is affirmed.
By: Delaney, J.,
Wise, John, P.J. and
Wise, Earle, J., concur.
