Prior to an equipment upgrade two weeks ago, Ohio’s crime labs were unable to differentiate legal hemp from marijuana. Law enforcement officials spoke to the Dispatch about how the upgrade will impact marijuana cases.
An equipment upgrade that enables Ohio’s three state crime labs in London, Richfield and Bowling Green to differentiate between hemp and marijuana is unlikely to change the way marijuana cases are enforced in the Buckeye State, defense lawyers and prosecutors say.
Instead, cultural and society forces at play for years in Ohio are far more likely to impact how marijuana cases are handled.
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Ohio cities have been trending away from strict enforcement of marijuana laws in recent years. A series of ballot initiatives approved between 2015 and 2017 — so-called “no fine, no time” laws — reduced the fine and jail time for minor marijuana cases to zero in more than a dozen Ohio municipalities, including cities as large as Toledo and as small as Logan (population 7,600).
And last year, city councils in Columbus, Cincinnati and Cleveland eliminated fines and jail time in low-level marijuana possession cases.
Ohio’s legislature last year legalized hemp — which, like marijuana, is derived from cannabis. Any cannabis that is less than 0.3% THC, the intoxicating ingredient in marijuana, is now considered hemp in the state.
At the time, Ohio Bureau of Criminal Investigation crime labs could detect the presence of THC but could not measure it. For that reason, Columbus decided to stop pursuing low-level marijuana cases over concerns that defense lawyers would stonewall those cases by demanding a lab test.
It was business as usual, however, for most Ohio cities. Bowling Green City Prosecutor Hunter Brown said police and prosecutors still could consider the totality of the circumstances.
“The chemical test that can differentiate (hemp and marijuana) is not the only way you can legally differentiate hemp from marijuana,” he said. “You don’t smoke hemp, so if someone has a bowl in their car, it’s more than likely marijuana.”
Marijuana possession is a minor misdemeanor, Brown added, and few suspects have the wherewithal to spend thousands of dollars on a lawyer to avoid a fine that typically adds up to $150.
“On the other side of it, I’m not sure the labs are going to waste time on small marijuana cases anyway,” said Columbus defense attorney John Saia, who is on the board of the Ohio Association of Criminal Defense Lawyers.
Portage County Prosecutor Victor Vigluicci said the crime lab upgrade likely won’t change the way cases are prosecuted because few defense lawyers demanded a lab test to prove their clients had marijuana and not hemp.
“I could count on one hand” the number of attorneys who used that tactic, and it was mostly employed to stall prosecutors, he said.
The statute of limitations on felony drug cases is several years, giving prosecutors the luxury of time in major marijuana trafficking and possession cases.
Even after the attorney general’s office announced the crime labs’ upgraded capabilities two weeks ago, Columbus City prosecutor Zach Klein said his office will continue to decline low-level marijuana cases.
His decision is consistent with a statewide trend resulting from changing attitudes about marijuana that led to the “no fine, no time” laws.
Even if voters change a city’s marijuana ordnance, police and prosecutors can still charge suspects under state and federal laws. However, statistics suggest that police and public officials are following the will of the public.
Athens Municipal Court handled hundreds of marijuana possession offenses in 2016, the year before Athens voters approved a “no fine, no time” law in 2017. The next year, the court handled only 80 marijuana possession cases.
Even before the city changed its laws, prosecutors were trending away from strict enforcement, Athens Law Director Lisa Eliason said.
“If someone was cited for possession of marijuana, our office routinely amended charges to disorderly conduct,” she said.
Defense lawyers said they’ve handled fewer marijuana cases in recent years.
“It’s been about two years since someone retained my services for a low-level marijuana offense,” Saia said.
However, police and prosecutors in a handful of cities that passed similar initiatives said they simply charge offenders under state statutes.
Newark Prosecutor Soug Sassen said the city’s police department will pursue marijuana cases despite a 2016 “no fine, no time” ballot measure. The department has a duty to enforce all laws, he said, including state statutes prohibiting marijuana possession.