Sgt. Joseph Olinger of the Boardman Police Department keeps an eye on drivers along Market Street near the Southern Park Mall recently. Sgt. Glenn Patton, who heads Boardman’s participation in the Mahoning County OVI Task Force, said he has not noticed a change in the number of marijuana-related intoxication cases in the township since recreational marijuana became legal last year. Staff photos / Ed Runyan

YOUNGSTOWN — When Capt. Ed McDonnell, chief of the patrol division of the Boardman Police Department, was asked whether the legalization of marijuana has significantly changed the nature of operating a vehicle while impaired enforcement, he points to a more significant change between about 2004 and 2016 toward the end of his career as patrolman.

“I noticed the last 12 years I was on the road, a vast increase in the number of narcotics — drug-related OVIs,” McDonnell said.

Many people can remember that around 2017, the state’s opiate overdose problem took hold, killing record numbers of Ohioans. But McDonnell said OVIs rose earlier than that and were more broadly based than opiates.

“It could also be alcohol, marijuana, a lot of times it could be a combination. But I did notice a lot more drug-related OVIs. Sometimes strictly drugs,” he said.

People intoxicated with narcotics would readily agree to take a breath test because they knew that test would not pick up on drug intoxication. But field sobriety tests and McDonnell’s experience told him there was another type of intoxication happening.

Such a person frequently “did a horrible job on the balance test.” And then he or she would be asked to give a blood or urine sample. Frequently, the person would be convicted of OVI.

Boardman Sgt. Glenn Patton, who heads up Boardman’s participation in the Mahoning County OVI Task Force, said he has not noticed a change in the number of marijuana-related intoxication cases since recreational marijuana became legal last year or even since medical marijuana became legal in 2016.

“We see a lot of usage out there, unfortunately, over the last 10 years. Marijuana seems intermingled with a variety of different types of drugs,” Patton said.

He believes that OVIs in general have been increasing in recent years, but the Boardman Police Department doesn’t break down OVIs by drug type, so it does not have statistics showing how prevalent marijuana-related OVIs are compared to other types.

OSP ORAL FLUID TEST

One agency that does have that type of breakdown is the Ohio State Highway Patrol. And it has led that agency to conclude that impairment through the use of marijuana has increased the number of fatal traffic crashes in the state in recent years.

Capt. Chris Kinn, executive officer in the Ohio State Highway Patrol Office of Field Operations, provided an OSP graphic showing that fatal marijuana-related crashes rose from 201 in the state in 2019 to 306 in 2023 — a 52% increase. Statistics for 2024 are due out soon, he said.

“That’s pretty astronomical,” Kinn said. “That’s a high number. That’s why it’s something that has been on our mind.”

From 2019 to 2023, the number of people killed in marijuana-related traffic crashes in the state rose from 230 in 2019 to 335 in 2023 — a 46% increase.

Kinn said the issue is important enough to the highway patrol that it has taken steps to develop an additional tool to help troopers determine marijuana intoxication. It is called oral fluid testing. Instead of using the traditional blood and urine techniques for testing for impairment, the patrol started a pilot program in August to swab a person’s mouth to obtain an oral sample. It can detect intoxication from a variety of substances.

“We have been working to bring oral fluid testing to fruition for a number of years, before Ohio had legalized nonmedical adult use marijuana,” Kinn said.

“The reason we have been working on it is because we have continually seen the use of marijuana in fatal crashes rise over the last probably two decades. We have seen a continual increase in marijuana use in fatal crashes,” he said.

“We have monitored that, especially for about the last five years or so. Our crash report form changed in 2019, and we were able to be a little more accurate in capturing drug use. So we have definitely seen an uptick,” he said.

He said he is awaiting statistics for 2024, but in the 2023 numbers, 24% of Ohio’s fatal crashes involved someone under the influence of marijuana.

“They may have had other things in their system as well. That shows you how big of a problem it is. And that number has been continually growing. That is why we started working on the oral fluid testing because we think that offers advantages to testing over blood and urine,” he said.

He said using blood and urine samples to prove intoxication is cumbersome for a couple of reasons.

To get a blood sample, a law enforcement officer needs to get a search warrant, and that can be challenging, especially in rural areas, Kinn said. Getting a search warrant in the middle of the night when a lot of impaired drivers are arrested can involve “waking up a judge,” he said. “There’s a lot of delays in that.”

Also, blood draws involve a trip to a hospital, which can take away resources from the hospital that might be needed for people who are sick or injured, he said. And, when a urine sample is collected, that requires an officer of the same sex as the driver to watch the person give the urine sample to ensure the sample is not altered, like by dipping the specimen cup in the toilet, he said.

“With an oral fluid swab, you can watch them regardless of your gender the entire time during the collection,” Kinn said.

A big advantage of the oral fluid test is that the drug does not have to be “ingested orally. It just has to be in your bloodstream,” he said. “If you inject a drug into your veins, and you are actively under the influence of it, it will show up in your oral fluid because all of us have such a high concentration of blood vessels in our mouth that whatever is active in our body — not presence of use but whatever is active — will show up in your oral fluid,” he said.

“If you are under the influence of something, it will translate to your oral fluid,” he said. “If you are not under the influence of it, it likely would not be in your blood, thus not in your oral fluid.”

Kinn said the highway patrol started a pilot program Aug. 1, 2024, and there has not been enough time yet for any court challenge to the oral fluid testing.

“But we would not be pursuing this if we didn’t feel really comfortable with it. We know the science behind it is very reliable,” he said.

An oral fluid test is done at a police department, sheriff’s office or highway patrol post, “just like you would normally do. You stop somebody. You make that determination they are too impaired to operate a motor vehicle, you make an arrest. You take them back for processing. Where you would normally take the urine sample, breath sample, you would collect oral fluid,” he said. “That oral fluid is then packaged up and sent to the Ohio State Highway Patrol Crime Lab, and then they run the tests on it on the exact same type of instruments that they have been running blood and urine tests for decades,” he said. “And they test for the same drugs as well. So we’re not just looking for marijuana, we’re looking for that whole gamut of drugs.”

The OSHP crime lab does testing for various agencies across the state, such as local police departments and sheriff’s offices. Many law enforcement agencies in the state send their blood and urine samples to the patrol crime lab, he said. When the program is rolled out to law enforcement agencies throughout the state, they will be “sending the oral fluid,” Kinn said.

Kinn said the patrol is “not at the point where we have turned it on completely yet. We want to work through this pilot program and make sure we have all of the bugs worked out, get some good court cases on it and then move forward on it. But our long term goal is to open this up for everybody, all of the law enforcement agencies to use just like they do the blood and urine testing now.”

PILOT PROGRAM

In its pilot program the patrol is working with partner agencies in the state, taking samples from agencies outside of the patrol and from state troopers, he said. None are in the Youngstown area.

To prepare for oral fluid testing, the Ohio Department of Health a few years ago made an administrative change to allow oral fluid testing. State law also has changed with Liv’s Law, known as H.B. 37, that added oral fluid testing to state law, Kinn said. Liv’s Law officially went into effect Wednesday after Gov. Mike DeWine signed it into law in January.

So far, no one has been charged solely as a result of an oral fluid test, only in combination with a blood or urine test.

“We’re getting two samples from everybody,” Kinn said.

He said he is not aware of anyone taking their OVI case to trial that involves a fluid test, but he is expecting that to happen at some point.

“We are definitely looking forward to the opportunity to present some evidence on this because we would not move forward on this if we didn’t feel we could prove it beyond any and all reasonable doubt,” he said.

Since recreational marijuana just started being sold in August, there will not be a lot of data from 2024 to evaluate when those numbers are finalized, Kinn said. The final numbers for 2025 will be the best chance to see whether legalized recreational marijuana has affected the number of people being killed, injured or charged with marijuana intoxication, he said.

2019 to 2023 STATS

The chart Kinn provided states that the numbers represent cases in which marijuana is “suspected and / or drug test results.” The numbers include drivers and pedestrians.

He added that the oral fluid testing and additional training have not been “a knee-jerk reaction to legalized marijuana. We have been working on this stuff for a number of years because this was a problem before marijuana was legalized.”

“We know marijuana impairs people. And we know that causes a problem on Ohio roadways. We have done training where we have tested people who have solely used marijuana and noticed obvious indicators that would make them too impaired to drive a motor vehicle,” he said.

Kinn said Alabama was the first state to use oral testing for drugs, starting about five years ago. Alabama, New York, Louisiana and Ohio are now using it. “Alabama is really the pioneer because they have been doing it for so long,” he said.

DEFENSE ATTORNEY

Joe Ohlin, a Youngstown area defense attorney, said there are many flaws in some techniques law enforcement uses to charge individuals with marijuana intoxication.

Typically, a person is charged with drug related OVI under a statute that alleges the person operated a motor vehicle “under the influence of alcohol, a drug of abuse, or a combination of them.”

Evidence in such cases often relies on the officer’s observations of the driver and his or her performance on field sobriety tests. But another section of the OVI law, referred to as the “per se” section, charges a person with testing over the legal limit.

Most people know that the legal limit for alcohol in Ohio to drive is 0.08. But there are limits for other drugs, including marijuana, Ohlin said. Ohio is one of relatively few states that sets a “per se” limit for THC, the active ingredient in marijuana.

‘The problem with THC is that the levels of THC drop roughly 80 to 90% immediately after smoking,” Ohlin said, adding that the effects of consuming alcohol and marijuana are vastly different.

“If you smoke marijuana, you are going to instantly feel the effects of marijuana, compared to alcohol, where if I have one beer, I’m not going to feel much. If I have two beers, I am going to feel a bit more. If I have three beers, four beers, the more and more I drink, the more and more (intoxication) I feel,” he said.

With marijuana, the effect is significant right away “and then goes significantly down.” THC can remain in a person’s body long after the person is no longer impaired by the drug, Ohlin said.

Ohlin said he does not think there have been more marijuana-related OVIs since Ohio legalized recreational marijuana. He provided data he pulled from the OSHP website that show marijuana-related OVI arrests by the patrol actually had dropped from 1,454 in 2023 to 1,375 in 2024.

Ohlin said he did not know anything about the patrol’s oral fluids pilot program, but he said he thinks “everybody in the community is in favor of better ways to detect impairment. Nobody wants individuals who are impaired by marijuana driving around, just like nobody wants individuals impaired by alcohol driving around.” He has not seen the oral fluids test used in any area OVIs, he said.

He said studies have been done that say that the methods being used to detect marijuana intoxication are not effective in determining whether a person is intoxicated.

“I have yet to read one — and I don’t believe one exists — an evidence based scientific study that has a definitive number, a definitive amount” of THC in a person’s blood or urine that qualifies as evidence of marijuana impairment, Ohlin said.

“There is a number in Ohio law, but NHTSA said “there is no such number. They can’t determine a number because unlike alcohol, marijuana affects everyone differently depending on whether you smoke it, ingest it. But if you smoke it, you are going to feel the effects immediately. If you get an edible, you ingest it, it’s going to take a while for the effects to kick in.”

He said, “I could be a habitual marijuana smoker and I’m doing so legally now, but if I smoke marijuana in the morning and I get in the car and drive at night, and my urine is tested, you are testing over the legal limit, even though you are not impaired. That is where the problem is — in the per se limits for marijuana- related OVIs.”

He said there are also problems with the field sobriety tests officers use to determine impairment — like the walk and turn and one-leg-stand tests. A lot of study has been done to determine that the field sobriety tests are credible for alcohol but are “not proven” for marijuana, Ohlin said.

BOARDMAN REACTION

McDonnell and Patton were not very familiar with the patrol’s oral fluids program and said they feel comfortable with the tools they currently have to detect intoxication — the officer’s observations, as well as blood and urine tests.

Patton said it is not difficult to detect marijuana intoxication.

“For a lot of people, you can tell, just like with alcohol, they hit a certain point where their lack of coordination is pretty evident. Sometimes it is a little more difficult to tell for people who use it more frequently,” Patton said.

McDonnell noted that is also true with people who use alcohol, but there is an additional type of field sobriety test used called Advanced Roadside Impaired Driving Enforcement that can help.

Patton said there is also another type of eye test, called lack of convergence, that can help an officer determine whether someone is intoxicated through marijuana. Patton said marijuana intoxication can be determined in standardized field sobriety tests, especially ones involving balance, such as the one-leg stand and walk and turn.

Patton said the OVI laws allow for an officer to charge a person with marijuana intoxication based “a lot on (an officer’s) observations, whether we have test results or not,” adding, “We have had some great results.”