State v. SchulzState v. Schulz
Dated: June 10, 2015
CARR, Presiding Judge.
{¶1} Appellant, Eric Schulz, appeals the judgment of the Akron Municipal Court. This Court affirms.
I.
{¶2} This matter arises out of a traffic stop in Akron, Ohio, on the evening of June 27, 2012. The parties stipulated to the following facts. At approximately 11:20 p.m., Trooper Petit of the Ohio State Highway Patrol observed a black Toyota Solara on South Arlington Street. Trooper Petit checked the vehicle‘s registration plate and discovered that the plate was expired. After initiating a traffic stop, Trooper Petit approached the vehicle and detected the odor of marijuana. Trooper Petit asked both the driver, Schulz, and the passenger if they had been smoking marijuana, and both occupants responded in the affirmative. Trooper Petit asked Schulz to exit the vehicle and walk back to the cruiser. Once at the cruiser, Trooper Petit detected the odor of marijuana emanating from Schulz. Though Schulz was placed in handcuffs,
{¶3} After Trooper Petit performed a search of Schulz’ person and found nothing, he then performed a search of Schulz’ vehicle and found a blue and white glass smoking device in the center console. Trooper Petit then proceeded to administer three standard field sobriety tests. Though Trooper Petit observed 0 of 6 possible clues of impairment on the Horizontal Gaze Nystagmus Test, he did notice that Schulz’ pupils were dilated. With the remaining two tests, Trooper Petit observed 4 of 8 possible clues of impairment on the Walk and Turn Test, and 3 of 4 possible clues of impairment on the One Leg Stand Test. No other field sobriety tests were administered.
{¶4} At that point Schulz was placed under arrest for operating a vehicle while impaired. Trooper Petit read Schulz a copy of the BMV 2255 form, and Schulz provided a urine sample to police within one hour of the traffic stop. Trooper Petit sent the bottled and sealed urine sample to the Ohio State Highway Patrol Crime Lab. The test results indicated 252.07 nanograms per milliliter of 11-nor-9-Carboxy-Tetrahydrocannabinol (Marijuana Metabolite) in Schulz’ urine. Trooper Petit also sent a sealed plastic bag containing the smoking device containing burnt plant residue for testing. After the plant residue substance was analyzed, it was confirmed that it was marijuana residue weighing .02 grams.
{¶5} Schulz was initially charged with the crime of driving under the influence of alcohol or drugs in violation of {¶6} Schulz filed a timely notice of appeal. Due to the fact that the appellate record did not contain the motion to dismiss as well as other relevant documents, this Court issued an opinion affirming Schulz’ conviction on March 19, 2014. State v. Schulz, 9th Dist. Summit No. 26875, 2014-Ohio-1037. Schulz filed a motion for reconsideration, explaining that the issues in the appellate record stemmed from an uncharacteristic docketing irregularity. Schulz filed an {¶7} Now before this Court, Schulz raises one assignment of error. THE TRIAL COURT ERRED IN DENYING THE APPELLANT‘S MOTION TO DISMISS BECAUSE {¶8} In his assignment of error, Schulz contends that {¶9} Schulz challenges the constitutionality of No person shall operate any vehicle * * * if, at the time of the operation * * * the person has a concentration of any of the following controlled substances or metabolites of a controlled substance in the person‘s whole blood, blood serum or plasma, or urine that * * * [a]s measured by gas chromatography mass spectrometry, the person has a concentration of marihuana metabolite in the person‘s urine of at least thirty-five nanograms of marihuana metabolite per milliliter of the person‘s urine or has a concentration of marihuana metabolite in the person‘s whole blood or blood serum or plasma of at least fifty nanograms of marihuana metabolite per milliliter of the person‘s whole blood or blood serum or plasma. {¶10} The {¶11} “In considering whether state legislation violates the Equal Protection Clause of the {¶12} When a statute does not implicate a fundament right or a suspect classification, courts employ a rational basis review, and a statute will not violate equal protection principles if it is rationally related to a legitimate government interest. Eppley at ¶ 15. Ohio courts grant substantial deference to the legislature when conducting a rational basis review and the State has “no obligation to produce evidence to sustain the rationality of a statutory classification.” Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, ¶ 91. “The rational basis test involves a two-step analysis. We must first identify a valid state interest. Second, we must determine whether the method or means by which the state has chosen to advance that interest is rational.” Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio St.3d 104, 2010-Ohio-4908, ¶ 19, quoting McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, ¶ 9; State v. Stull, 9th Dist. Summit No. 27036, 2014-Ohio-1336, ¶ 22. However, the preliminary step in conducting any equal protection analysis is to examine the classifications {¶13} The Supreme Court of Ohio has routinely held that where there is no classification, there is no discrimination which would offend the equal protection clauses of either the United States or Ohio Constitutions. Burnett at ¶ 31; Conley, 64 Ohio St.3d at 290. Moreover, when an appellant “fail[s] to identify the appropriate class, we need not construct one for her in order to proceed with the analysis.” Burnett at ¶ 37. This Court has repeatedly rejected equal protection challenges when the appellant has failed to correctly identify the classification created by the statute. Gerak v. Dentice, 9th Dist. Summit No. 19767, 2000 WL 372316, *4-5 (Apr. 12, 2000); Clement v. Grange Mut. Cas. Co., 9th Dist. Medina No. 2698-M, 1998 WL 195904, *4 (Apr. 22, 1998). “Only when it is shown that the legislation has a substantial disparate impact on classes defined in a different fashion may analysis continue on the impact of those classes.” Beagle v. Walden, 78 Ohio St.3d 59, 63 (1997), quoting Califano v. Boles, 443 U.S. 282, 294 (1979). {¶14} In his merit brief, Schulz contends that the express language of {¶15} Though Schulz claims that {¶16} As Schulz notes in his merit brief, the addition of the “metabolite” language in the current version of [U]nlike 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 (1993); State v. Phillips, 178 Ariz 368 (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). State v. Whalen, 1st Dist. Hamilton No. C-120449, 2013-Ohio-1861, ¶ 16, fn 2. The State has a legitimate interest in promoting highway safety and keeping impaired drivers off public roadways. Whalen at ¶ 17, citing State v. Tanner, 15 Ohio St.3d 1, 3-4 (1984). It is axiomatic that the General Assembly acts in furtherance of that goal by enacting legislation which prevents individuals under the influence of marijuana from operating motor vehicles on public roadways. Id. {¶18} Schulz’ sole assignment of error is overruled. {¶19} Schulz’ assignment of error is overruled. The judgment of the Akron Municipal Court is affirmed. Judgment affirmed. There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Akron Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. DONNA J. CARR FOR THE COURT WHITMORE, J. MOORE, J. CONCUR. APPEARANCES: KIRK A. MIGDAL, Attorney at Law, for Appellant. CHERI CUNNINGHAM, Law Director, GERTRUDE WILMS, Prosecuting Attorney, and THOMAS D. BOWN, Assistant Prosecuting Attorney, for Appellee.II.
ASSIGNMENT OF ERROR
III.