        [Cite as State v. Whalen, 2013-Ohio-1861.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



STATE OF OHIO,                                   :   APPEAL NO. C-120449
                                                     TRIAL NO. 11TRC-40960
    Plaintiff-Appellee,                          :

  vs.                                            :      O P I N I O N.

PAIRREN WHALEN,                                  :

    Defendant-Appellant.                         :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 8, 2013



John P. Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and Melanie
Reising, Assistant City Prosecutor, for Plaintiff-Appellee,

David H. Hoffman, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                         OHIO FIRST DISTRICT COURT OF APPEALS



D E W INE , Judge.

       {¶1}        This is a constitutional challenge to provisions of Ohio’s impaired driving

statute which makes it illegal to drive with marihuana metabolites in one’s system. See R.C.

4511.19(A)(1)(j)(viii). The defendant, who was convicted for a violation of the statute,

argues primarily that the statute is unconstitutional because it criminalizes the presence of

certain metabolites which, he claims, do not affect one’s ability to drive. We are not

persuaded, and we affirm his conviction.

                                                   I.

       {¶2}        Pairren Whalen was stopped by a police officer for making an improper

left-hand turn. When the officer approached Mr. Whalen’s vehicle, he could smell burnt

marihuana. The officer noticed that Mr. Whalen was speaking with a “very distinct slur,

kind of just real slow inebriated speech” and his eyes were very glassy and bloodshot. The

officer administered field sobriety tests.

       {¶3}        Based upon the odor of marihuana and Mr. Whalen’s poor performance

on the field sobriety tests, the officer arrested Mr. Whalen. Mr. Whalen admitted that he

had been smoking marihuana and that there was a baggie with 100 grams of marihuana in

the glove box of his vehicle. He was transported to the police station where he submitted a

urine sample. Testing of the urine sample revealed a blood alcohol content of .023, and the

presence of marihuana metabolite at a concentration greater than 500 nanograms.

       {¶4}        Mr.    Whalen     was     subsequently   charged   with   violating    R.C.

4511.19(A)(1)(a), operating a vehicle under the influence of alcohol and/or drugs of abuse,

R.C. 4511.19(A)(1)(j), operating a vehicle with a prohibited concentration of a controlled

substance, and Cincinnati Municipal Code 502-19, disregarding a traffic control device.




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                                                     II.

       {¶5}        Mr. Whalen filed a motion to suppress and a motion to dismiss, arguing

that R.C. 4511.19(A)(1)(j)(viii) was unconstitutionally overbroad and vague. Specifically, he

argued that the statute unconstitutionally criminalized driving with a marihuana metabolite

in one’s system.    During the hearing on the motions, Robert Topmiller, a forensic

toxicologist with the Hamilton County Coroner’s office, testified on behalf of the state, and

Harry Plotnick, who was identified as an attorney and a “consultant in forensic toxicology,”

testified for the defendant. The testimony of both experts was largely in agreement as to the

science underlying the metabolite at issue. The body breaks down the active ingredient in

marihuana, tetrahydrocannabinol (“THC”) into several metabolites. Most prominently, the

THC is broken down first into a metabolite referred to as 11-hydroxy-THC, and then into 11-

carboxy-THC, the metabolite found in Mr. Whalen’s system. THC is a hallucinogen and has

psychoactive properties.    11-hydroxy-THC also has some psychoactive properties but is

much weaker than the THC.         11-carboxy-THC has no biological effect on the nervous

system. THC metabolizes at a much quicker rate than 11-carboxy-THC, and, therefore,

leaves an individual’s body more quickly than 11-carboxy-THC. The coroner’s lab only has

the capacity to test urine for 11-carboxy-THC.

       {¶6}        The trial court denied the motions to dismiss and to suppress.        Mr.

Whalen pleaded no contest to operating a motor vehicle with at least 35 nanograms of

marihuana metabolite in his urine, a violation of R.C. 4511.19(A)(1)(j)(viii)(II). The trial

court found him guilty, and sentenced him to 180 days in jail with 177 days suspended and

three days in a driver-intervention program, a $400 fine and court costs, 18 months

probation, and a six-months’ driver’s license suspension, but stayed his sentence pending

this appeal.




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        {¶7}          Mr. Whalen asserts in this appeal that the statute is unconstitutional on

its face and as applied to him, arguing that it is both void for vagueness and overbroad. He

additionally contends that the trial court violated his Sixth Amendment Right to

Confrontation by denying him the opportunity to cross-examine the state’s expert witness

about whether the amount of marihuana metabolite in his system would have impaired his

ability to operate a motor vehicle.

                                                       III.A.

        {¶8}          Ohio has a three-part statutory scheme for impaired driving when the

drug of abuse is marihuana. R.C. 4511.19(A)(1)(j)(vii) deals with marihuana, itself, and

criminalizes driving with certain concentrations of marihuana in one’s urine or blood. It is a

per se offense in that the state need only show that the defendant operated a vehicle and the

defendant’s chemical test reading was at the proscribed level. R.C. 4511.19(A)(1)(j)(viii)(I)

and (II) deal with marihuana metabolites. R.C. 4511.19(A)(1)(j)(viii)(II) is also a per se

provision; it criminalizes driving with at least 35 nanograms of marihuana metabolite by

urine      or   at   least   50   nanograms   of       marihuana   metabolite   by   blood.   R.C.

4511.19(A)(1)(j)(viii)(I) requires impairment plus a lower-level of metabolite presence: it

criminalizes driving if a person is impaired and has at least 15 nanograms of marihuana

metabolite by urine or at least five nanograms of marihuana metabolite by blood.

        {¶9}          In his first assignment of error, Mr. Whalen argues that both R.C.

4511.19(A)(1)(j)(viii)(I) and (II) are void for vagueness and overbroad.             Mr. Whalen,

however, lacks standing to challenge the constitutionality of R.C. 4511.19(A)(1)(j)(viii)(I)

because he pleaded no contest to and was found guilty only of violating R.C.

4511.19(A)(1)(j)(viii)(II). Accordingly, we confine our analysis to this subsection of the

statute.




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       {¶10}       We first address Mr. Whalen’s argument that the statute is void for

vagueness. The vagueness doctrine, which is premised on the Due Process Clause of the

Fifth and Fourteenth Amendments, requires a statute to give fair notice of offending

conduct. A criminal statute is void for vagueness if it fails to define an offense with sufficient

definiteness that ordinary people can understand what conduct is prohibited, or if it

encourages arbitrary and discriminatory enforcement. State v. Tanner, 15 Ohio St.3d 1, 3,

472 N.E.2d 689 (1984), quoting Kolendar v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855,

1858, 75 L.Ed.2d 903 (1983). Where, as here, a statute does not threaten fundamental

constitutional rights, the constitution permits a greater degree of vagueness. Village of

Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186,

71 L.Ed.2d 362 (1982). In such a case, a court should sustain a facial challenge only where

the “enactment is impermissibly vague in all its applications.” Id. at 495-96. If the statute

survives a facial challenge, a litigant may succeed on a vagueness claim only by

demonstrating that the statute is impermissibly vague as applied to him or her. Id.

       {¶11}       Mr. Whalen argues that R.C. 4511.19(A)(1)(j)(viii)(II) is facially void for

vagueness because it fails to provide an ordinary person with notice of the prohibited

conduct. There is nothing vague, unclear, or indefinite about the statute, however. It

proscribes driving with explicitly-defined levels of a marihuana metabolite. A metabolite is

commonly defined as a “substance produced by metabolism.”                   American Heritage

Dictionary 1103 (4th Ed.2000). A person of ordinary intelligence is certainly capable of

understanding the meaning of a marihuana metabolite and that driving with the proscribed

levels of such a metabolite in one’s system is prohibited.

       {¶12}       Mr. Whalen suggests, however, that the statute is vague because an

ordinary person is not able to reasonably discern how long traces of marihuana, whether

ingested legally or not, may remain in one’s system. Thus, he argues, a person who ingests



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marihuana does not know when he can legally drive an automobile. Marihuana, however, is

a controlled substance. It is unlawful to use or possess marihuana in any amount in Ohio.

See R.C. 2925.11(C)(3)(a)-(g). Certainly, one who has consumed marihuana is on fair notice

that metabolites may remain in his system.

        {¶13}        Nor are we persuaded by Mr. Whalen’s argument that the statute lends

itself to arbitrary and discriminatory enforcement.            The Ohio Supreme Court rejected a

similar argument in upholding Ohio’s per se OVI statute. Tanner, 15 Ohio St.3d at 3-4, 472

N.E.2d 689. The court explained that by setting a maximum blood alcohol content level the

statute left “no discretion in the physical application of the statute” and thereby

“discouraged” “discriminatory and arbitrary enforcement.” Id. at 4. Similarly, here the

statutory scheme discourages arbitrary and discriminatory enforcement by setting precise

metabolite levels at which driving is prohibited.

        {¶14}        Mr. Whalen also argues that the statute is fatally overbroad. The doctrine

of overbreadth, however, relates only to First Amendment cases. United States v. Williams,

553 U.S. 285, 292-293, 128 S.Ct. 1830, 170 L.Ed.2d 260 (2008); State v. Brooks, 75 Ohio

St.3d 148, 155, 661 N.E.2d 1030 (1996). Because Mr. Whalen has failed to identify any First

Amendment right inhibited by the statute, his overbreadth challenge lacks merit.1

        {¶15}        Finally, to the extent that Mr. Whalen argues the statute is

unconstitutional as applied to him, he has not identified any constitutionally protected right

to operate his vehicle after consuming marihuana. Here, he was arrested with over 14 times

the legal limit of marihuana metabolite in his system. Persons of ordinary intelligence




    1 We recognize that in Tanner, the Ohio Supreme Court considered an argument that the OVI per se

statute was unconstitutionally overbroad because it restricted an individual’s fundamental right to travel.
Tanner, 15 Ohio St.3d at 5, 472 N.E.2d 689. In rejecting the argument, the Tanner court noted that
driving is a privilege, not a right and that “there is no fundamental constitutional right to drive while
drunk.” Id. Similarly, here, there is no fundamental right to drive after using illegal drugs.



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                            OHIO FIRST DISTRICT COURT OF APPEALS



would not have to guess whether the statute applies to his conduct. Because he has not

“presented any evidence of a presently existing set of facts which makes the statute void and

unenforceable when applied to him,” his “as applied” challenge fails as well. State v. Dario,

106 Ohio App.3d 232, 665 N.E.2d 759 (1st Dist.1995), citing State v. Bilder, 99 Ohio App.3d

653, 651 N.E.2d 502 (9th Dist.1994).

        {¶16}         Although, Mr. Whalen couches his arguments in terms of vagueness and

overbreadth, 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.

Certainly, however, the presence of a marihuana metabolite in one’s system indicates that

one has used marihuana, an illegal drug in Ohio.2 Furthermore, THC, the active ingredient

in marihuana, leaves the body relatively quickly. Unlike the case with alcohol 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 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.

        {¶17}         The Ohio Supreme Court has recognized that driving is a privilege, not a

constitutional right, and that the state has a legitimate interest in highway safety and

keeping impaired drivers off the road. Tanner, 15 Ohio St.3d at 3-4, 472 N.E.2d 689. The




     2 It is also worth noting that unlike some other states, Ohio does not prohibit driving with any amount

of a marihuana metabolite in one’s body but rather sets certain maximum limits that may not be
exceeded. Compare People v. Gassman, 251 Ill.App.3d 681, 622 N.E.2d 845 (1993); State v. Phillips, 178
Ariz. 368, 873 P.2d 706 (1994). The General Assembly, in constructing the per se statute, expressly
considered the arguments of those who claimed that the law lacked a direct correlation between the
prohibited amount of marihuana and its metabolite in a driver’s system and impairment. Senators Steve
Austria and Patricia Clancy, two of the bill’s sponsors, noted during deliberations on the bill that they had
worked closely with forensic toxicologists to establish the precise levels at which driving is prohibited in
the statute and that the levels in the bill were not only consistent with federal standards, but that the
forensic toxicologists who had participated in setting those levels had unanimously agreed that anyone
driving with the levels of the substance listed in the bill definitely would be impaired. See 2005 OH
Sub.S.B. 8, Third Consideration, available at http://www.ohiochannel.org, Ohio Senate Session (February
16, 2005) 14:15:57 (accessed May 1, 2013).


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General Assembly acted well within its police powers in criminalizing driving with a

prohibited amount of marihuana or marihuana metabolite in a person’s blood or urine.

                                                   III.B.

       {¶18}      Mr. Whalen also presents a second assignment of error in which he

argues that the trial court erred in not allowing his attorney to cross-examine the state’s

expert witness, Mr. Topmiller, about whether the amount of marihuana metabolite in his

system would have impaired his ability to operate a motor vehicle. As explained above,

however, R.C. 4511.19(A)(1)(j)(viii)(II) is a per se offense. The only issue is whether the

driver had a proscribed amount of a marihuana metabolite in his system. Accordingly, the

testimony Mr. Whalen’s counsel sought to elicit was irrelevant, and the trial court acted well

within its discretion in limiting cross-examination. The second assignment of error is

overruled.

                                                     IV.

       {¶19}      We affirm the judgment of the trial court.


                                                                         Judgment affirmed.

CUNNINGHAM, P.J, and DINKELACKER, J., concur.


Please note:
   The court has recorded its own entry this date.




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