State v. WhalenState v. Whalen
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.
O P I N I O N.
DEWINE, Judge.
{¶1}
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
II.
{¶5} Mr. Whalen filed a motion to suppress and a motion to dismiss, arguing that
{¶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
{¶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.
III.A.
{¶8} Ohio has a three-part statutory scheme for impaired driving when the drug of abuse is marihuana.
{¶9} In his first assignment of error, Mr. Whalen argues that both
{¶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
{¶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 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
{¶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 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
{¶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 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,
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.