An untested loophole opened by a year-old policy change could hamper small Ohio law enforcement agencies’ ability to enforce minor misdemeanor marijuana laws.
The Ohio Bureau of Criminal Investigation stopped testing minor misdemeanor quantities of marijuana last March.
Many times, an arrest for such a small amount of marijuana ends with a plea deal and never sees trial.
Of the few that do make it to trial, area municipal court judges say no defendant in their experience has ever contested that the substance found was not marijuana.
But since BCI stopped conducting the test for free, a defense has opened that has local police worried.
“It’s a concern, because we don’t want to lose the case because BCI refuses to do the test,” Whitehouse deputy police chief Todd Kitzler said.
Possessing less than 100 grams of marijuana — about 3.5 ounces — is classified as a minor misdemeanor. The penalty for conviction is a maximum $150 fine and a discretionary driver’s license suspension.
Typically, someone is cited rather than arrested, leaving them the option to plead guilty and pay the fine without appearing in court, but that does not change the standard of evidence needed for a conviction.
“Whether it’s a minor misdemeanor case or an aggravated murder case, the standard that must be established by the state to prove a case beyond the reasonable doubt is exactly the same,” Maumee Municipal Court Judge Gary Byers said.
Officers typically use a basic field drug test to confirm that a substance is marijuana, but that test only establishes probable cause. Further testing would be needed for evidence to rise to the higher standard needed for conviction. An officer can be certified through a two-day Ohio Peace Officers Training Academy course, but Waterville Township Police Chief Richard Bingham is unsure that would hold up in court.
“Some courts will not accept that,” he said. “Some courts want a chemist report.”
Eighty-five officers have taken the course since last January, when the policy change was announced. Tom Stickrath, BCI’s superintendent, has not heard of problems stemming from the class.
“It has worked effectively in other jurisdictions,” he said. “I’m happy to work with the courts if needed.”
Since the case has not come up in his court, Judge Byers would not comment definitively on whether he would accept expert testimony from an officer trained through this type of course, but he expressed some skepticism.
“Whether you go through a training or not, you still have to qualify that a person is, in fact, an expert, and that’s a legal standard that has to be established,” he said. “Whether an officer going through some sort of crash course on identifying marijuana rises to that level, we have to take on a case-by-case basis.”
Sylvania and Perrysburg municipal courts have not encountered any defendant to challenge whether a substance marijuana, either.
Mr. Stickrath said his office had to evaluate the time taken up on these sorts of minor cases, compared to cases involving heroin, fentanyl, and other opiates, including synthetics, that had flooded his office.
“Our workload had gone up extraordinarily in the last five years,” he said, with cases nearly doubling in that time frame.
But that’s unsatisfactory for Chief Bingham, who sees stopping marijuana as the start of stopping heroin.
“I don’t think anyone is looking at a big picture. You are 50 times more likely to progress to heroin or cocaine if you start with marijuana,” he said. “To me it makes no sense. Let’s go after the big fish before they become a bigger fish.”
He said his department is prepared to pay the costs associated with these tests, if needed, though he hopes BCI will reconsider its decision.
Mr. Stickrath said if he heard uniform complaints, his office could reconsider, but he is not aware of this problem moving from hypothetical to concrete.
“It’s my belief that this can be done on a local level,” he said.
Contact Zack Lemon at: zlemon@theblade.com, 419-724-6282, or on Twitter @zack_lemon.
First Published February 13, 2017, 5:00 a.m.
