JOINT YOU SMOKED LAST WEEK MAY COME BACK TO HAUNT YOU

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.