Marijuana reform starts locally in Ohio
The state legislature decriminalized marijuana in 1977. Yet one million Ohioans live in places that continue to make pot possession a criminal offense.
Dozens of Ohio communities — from Ashland to Zanesville — remain at odds with state law and common sense.
Did you know Youngstown has Ohio’s harshest marijuana law?
Did you know Cleveland decriminalized pot possession years ago but forgot to do the same for paraphernalia?
Did you know Cleveland, Toledo and Dayton never suspend driver’s licenses for marijuana possession while Columbus and Cincinnati always suspend?
Did you know Mayor’s Courts don’t have authority to suspend driver’s licenses for pot — but often do, out of ignorance?
* * * *
Marijuana reform begins locally in Ohio.
City Council’s should be asked to:
1) Decriminalize. Make possession a “minor misdemeanor,” like a traffic ticket.
2) End license suspensions. Six-month revocations for non-driving offenses must stop.
3) Paraphernalia. Decriminalize, same as state law, and no license suspensions.
City Councils will make these reforms — if asked!
Ohio will become a better place immediately, and broader reform — legalization, medical marijuana — will get a jumpstart, encouraging voters to act statewide.
End driver's license suspensions
Half of Ohio cities still suspend driver’s licenses for pot possession.
Democratic frontrunner for governor says he’ll do whatever voters want, won’t advocate.
In an interview with the Columbus Dispatch released today, Democratic gubernatorial candidate Richard Cordray had the following exchange:
Dispatch: Where do you stand on legalization of recreational marijuana? read more…
Toledo voters abolished fines or jail time for marijuana. The vote (on Sept. 15) was 11,197 to 4,760. (The Toledo Blade provides details.)
The victory is an example of how home rule authority, granted by the Ohio Constitution, can further the case for reform.
Ohio “decriminalized” marijuana possession more than 40 years ago, one of the first states to do so.
What does that mean? What is “decriminalization”? How does the law work? What needs to be done?
This article will explain the technical details of Ohio marijuana law, both at the state and local level.
This knowledge will empower reformers to minimize harm from marijuana laws in Ohio, even before prohibition ends.
Most Ohio citizens are subject to two sets of marijuana laws: state and local. (Three if you count federal.)
- State government has one set of marijuana laws (passed by the Ohio legislature).
- Most local governments have another set of marijuana laws (passed by City Councils).
The bulk of everyday marijuana enforcement is done by local police using local law. Focusing only on state law is a critical error when trying to reform marijuana laws.
Ohio’s 1912 constitution gives local governments “home rule” authority over misdemeanor drug offenses. That means marijuana possession of up to 100 grams (3.5 ounces) of pot and possession of marijuana paraphernalia are controlled by cities within city limits.
In other words, cities are not required to follow state law on most marijuana offenses — and the state cannot force them to do so. (Felonies, such as trafficking large amounts, are governed by state law.)
Ohio cities tend to pass laws similar to state law. But, over time, differences between state and local laws increases. Today, most cities and villages punish marijuana offenses differently than the state — sometimes for the worse, sometimes for the better.
Home rule authority is the best place to achieve fast, inexpensive, meaningful reform.
You don’t need to spend millions of dollars on a ballot issue to stop Youngstown from punishing marijuana more harshly than every other big city in Ohio. All you need is a persuasive argument to the seven-member City Council — a reform effort which, oddly, has never been tried.
Another option: After gathering enough signatures to put medical marijuana on the statewide ballot, home rule lets you put a (non-binding but politically potent) resolution of support for medical marijuana before your town’s voters. The City Council can put this on the local ballot or it can be done by gathering signatures.
Think about the political difference between these two statements:
- Today’s reality. “Not a single Ohio community or city council has publicly supported allowing medical marijuana in Ohio.”
- Potential reality. “Voters in 43 Ohio cities have passed resolutions asking the legislature to put medical marijuana on the statewide ballot.”
Few city officials realize that their local laws differ from state law or the law in the city next door. And few Ohio activists understand the power of local laws and resolutions to change the statewide political climate.
Local marijuana reform requires knowledge and energy — but little money.
Three key opportunities for local reform are:
- ending local laws that criminalize pot possession and paraphernalia.
- stopping six-month driver’s license suspensions that some places — about half of Ohio — give for marijuana offenses.
- passing local resolutions to support broader reform, such as medical marijuana or full tax-and-regulate legalization.
Keep reading to learn the nuts and bolts.
State v. Local: Which law applies?
State law always applies in unincorporated areas of Ohio, such as rural townships patrolled by sheriff’s departments.
But more than two-thirds of Ohioans live in incorporated cities and villages. Ohio’s nearly 1,000 municipalities can — and usually do — have their own sets of laws.
State and local laws overlap. A city police officer can change a marijuana offender under either local law or state law.
That said, as a matter of practice, most cities use local law to charge offenders. It’s common for 100% of marijuana charges in a jurisdiction to be filed under local law, although a few places file 100% of charges under state law.
For example, Medina’s local law requires a three-day mandatory minimum in jail for marijuana possession. Medina prosecutors considers this crazily harsh, so the city ignores its own law and uses the state’s (decriminalized) marijuana law.
Columbus is unusual, too. It is one of the few places that has no local drug law. It uses state law.
And a few cities let police officers apply whichever law they want — say, local law 70% of the time and state law 30% of the time.
These inconsistencies make little sense but are an enormous opportunity for reformers. Sometimes state law is best, sometimes local law is. Stopping harm is what matters, so actual practice should always be the result you are seeking.
City officials who oppose reform like to pretend the decision is out of their hands. This is false.
The decision is always a local decision. The state cannot make a municipality use state marijuana law. The city chooses to use state law or local law — and it chooses what local law is.
Local elected officials control (a) the law, (b) the penalties and (c) the enforcement practices for nearly all marijuana enforcement in Ohio. That’s why reform truly does start locally.
|Which marijuana law applies|
|Local law||State law||Most frequently used|
The state’s marijuana law can be found here — in Ohio Revised Code, Chapter 2925.11(B)(3).
After clicking on this link, search for “marihuana” — yes, that’s how Ohio spells it — to find the law governing pot.
The key passage is:
(a) Except as otherwise provided in division (C)(3)(b), (c), (d), (e), (f), or (g) of this section, possession of marihuana is a minor misdemeanor.
“Minor misdemeanor” = “decriminalization.”
A minor misdemeanor carries a fine of up to $150 but, like a traffic ticket, is not subject to jail time and does not create a criminal record. The offense is still illegal — this is not legalization — but the penalty is a fine, not jail or a criminal record.
The state legislature made possession of marijuana paraphernalia a minor misdemeanor in 2012, down from a fourth degree misdemeanor.
“Numbered misdemeanor” — first, second, third or fourth degree misdemeanors — are criminal offenses. Even if you don’t go to jail, the fact that you could go to jail gives you a criminal record that can make it forever harder to get a job, a professional license or student aid.
The maximum fines for numbered misdemeanors are higher, too. Although the max is seldom given, marijuana possession fines are almost always greater when the offense moves up the misdemeanor ladder.
|Marijuana possession is a minor misdemeanor under state law, but a first to fourth degree misdemeanor in 40 Ohio cities.|
|Maximum fine||Maximum jail term|
|First degree||$1,000||180 days|
|Second degree||$750||90 days|
|Third degree||$500||60 days|
|Fourth degree||$250||30 days|
State law possesses another crucial section protecting marijuana offenders. Chapter 2925.11(D) says directly — so it’s explicit, not just implied — that possession of up to 100 grams (3.5 ounces) does not create a criminal record.
(D) Arrest or conviction for a minor misdemeanor violation of this section does not constitute a criminal record and need not be reported by the person so arrested or convicted in response to any inquiries about the person’s criminal record, including any inquiries contained in any application for employment, license, or other right or privilege, or made in connection with the person’s appearance as a witness.
State law has one very bad part, though.
In 1994, the state added language that required every marijuana offense — even those unrelated to driving — be punished with a minimum six-month driver’s license suspension.
(2) The court shall suspend for not less than six months or more than five years the offender’s driver’s or commercial driver’s license or permit.
This provision was added in a response to a federal law that required states to suspend licenses for drug offenders or lose 8% of federal highway funding.
Thirty states have “opted out” of this federal mandate and the Ohio legislature did the same in December 2014 as well.
However, the “opt out” process takes one to three years to complete, so this outdated law forcing license suspensions for marijuana offenders will remain on the state’s books for a while longer.
The good news is cities don’t have to suspend — and most already do not.
Reformers have the power to stop more than 100,000 license suspensions per year by focusing on the roughly half of Ohio local governments that still suspend.
Even better, look at the exact language of your town’s law.
To find out what you’re local law says, use Google and do this:
- Type your city’s name and “municipal code” or “codified ordinances.”
- Go to “General Offenses.”
- Under “General Offenses,” go to “Drug Abuse Control.”
If this doesn’t work, try your city’s web site.
In most Ohio cities, marijuana possession is Chapter 513.03 of the local code and marijuana paraphernalia is 513.12 or 513.121.
Some cities use different numbers, but all drug laws can be found under “General Offenses.”
- the misdemeanor level for possession and paraphernalia.
- the license suspension language.
You want minor misdemeanor in the law and “may suspend” or silence on license suspensions. You do not want “shall suspend.”
In Ohio, 40 cities still treat marijuana as a criminal offense, and 50 treat paraphernalia that way. Here’s the breakdown:
|Number of municipalities||Total Population|
|Number of municipalities||Total Population|
All these cities should be pressured to:
- make marijuana possession and paraphernalia a minor misdemeanor, consistent with state law.
- end license suspensions.
Both of these penalties are foolish, self-inflicted harm. They make it hard for their local residents to work, go to school and compete with residents of other Ohio cities, who may have done the same thing but can still drive to work and have a clean record.
Legalize marijuana locally?
Unfortunately, local governments cannot legalize marijuana, either for medical or recreational purposes.
Home rule gives Ohio cities and villages broad control over the penalties that apply to misdemeanor marijuana offenses.
Toledo activists will have on the ballot later this year a proposal that reduces penalties to zero. But that’s as far local governments can go.
Ohio law is clear that “local governments cannot legalize something that the state prohibits or prohibits something that the state allows.”
In other words, because the state prohibits marijuana, local governments cannot legalize it. Period. This reform can occur only at the local level.
Local governments lead reform because they control enforcement and penalties on an everyday basis and in nearly all cases. Local governments can stop arresting and penalizing , but they cannot authorize a local grow business, even in a tax-and-regulate model.
This reform is partly similar to what’s happening in Colorado and Washington. Congress can make pot illegal under federal law, but it can’t make states enforce federal laws — the “anti-commandeering” concept. When Colorado refused to go along, marijuana prohibition collapsed as a practical matter because federal agents could theoretically starting arresting pot smokers under federal law but didn’t have the resources to do so.
Ohio situation is roughly similar. The state depends on the good graces of local police to enforce the state’s decision to prohibit marijuana. It’s only the social norm of municipal conformity — not law itself — that makes marijuana prohibition a reality in Ohio.
Marijuana reform starts locally.
This article was lightly copy editing. Please tell us about typos and other errors. Thanks.
[contact-form to=’email@example.com’ subject=’comment on state and local law story’][contact-field label=’Name’ type=’name’ required=’1’/][contact-field label=’Email’ type=’email’ required=’1’/][contact-field label=’Comment’ type=’textarea’ required=’1’/][/contact-form]
Ohio has at least four efforts underway to put a marijuana issue before voters statewide. The efforts are:
- Ohio Rights Group. A constitutional amendment allowing medical marijuana.
- Responsible Ohioans for Cannabis. A constitutional amendment to legalize marijuana.
- Responsible Ohio. A constitutional amendment to legalize marijuana by a new group that doesn’t yet have a web site.
- Ohioans To End Prohibition. A constitutional amendment to legalize marijuana.
None of these groups is likely to succeed.
Ohio has burdensome ballot access rules that make expensive, time-consuming and logistically difficult to get on the state’s ballot.
Signature gathering and legal expenses generally cost $2 million minimum, often much more. After that, a successful campaign can cost tens of millions of dollars in a large state with many television markets.
If medical marijuana made the statewide ballot, it would almost certainly be approved, even without a paid media campaign. Medical marijuana is supported by 87% of voters and every demographic group. This is a close to indestructible margin for a constitutional amendment that needs only 50% + 1 vote to pass, unlike Florida’s 60% supermajority requirement.
By contrast, marijuana legalization would likely lose at the ballot box, even with a $40 million media campaign, almost certainly without one.
Ohio voters supported legalization by a 51-44% margin in February 2014. That small and soft margin would quickly evaporate in the face of uncertainty over policy and implementation issues, broad opposition from the political and legal establishment, and division within Ohio’s reform community.
Ohio isn’t Colorado — or even Michigan.
The Buckeye State was a leader in marijuana reform for more than a century, from the Ohio State Medical Society’s production of the first comprehensive review of medical marijuana in 1860 to the state legislature’s early decriminalization of marijuana possession in 1977.
But, in the last four decades, Ohio has gone from a leader to laggard, not just on marijuana but on social and economic change generally.
The legislature has changed since 1977. So has the state.
Ohio was once a social and economic innovator. In 1910, Wilbur Wright said the key to success was to have good parents and be born in Ohio.
It’s not that way today. In 2015, Ohio is a swing state — a barometer of the national average.
It’s not that Ohioans won’t approve marijuana legalization. They will. But the question is best asked properly, not suddenly.
Ohio doesn’t have a big libertarian or populist streak. Our politics are more Big Government, Big Labor, Big Business. Stasis, not change, is the natural disposition of our state’s electorate. Change comes slowly and cautiously.
In every state where marijuana reform has occurred, state-level reform has followed local reform. Michigan reform advocates spent years winning small elections at the municipal level, building a grassroots movement that resulted in voters approving medical marijuana in 2008.
By contrast, Ohio reform advocates have spent decades grasping at the Big Bang theory of statewide change — with zero success. Rarely has anything been attempted locally, not in friendly college towns to accomplish anything locally.
The result has been a political disaster. Our neighbor is years ahead of us in reform — not Colorado or Washington level reform but progress unmatched in the industrial midwest. Ohio and Michigan have roughly similar constitutions, ballot access and home rule laws, yet Ohio reformers have yet to even try to win in friendly college towns, such as Columbus, Miami or Athens.
Michigan’s strategy is Politics 101. It follows Tip O’Neill’s maxim: “All politics is local.” Tactics are basic and systematic: Win where you can, when you can. Build political momentum. Grow support, create organizational capacity. Be bold, daring and clear-eyed. Don’t waste money or energy on impractical dreams.
In Ohio, marijuana reform starts locally. This is how it began in Colorado and Washington.
If Ohio’s marijuana reform movement doesn’t have the ability to even try to decriminalize possession in Youngstown or stop license suspensions in Columbus — or, heck, even get a non-binding resolution supporting medical marijuana on a small town ballot — the reform movement has little realistic chance of achieving statewide legalization.
Ohio reformers need to prove they can accomplish something before the cash balloon arrives from out of state.
Ohio reformers need to get on a winning streak, to succeed before local voters and local city councils. Ohio reformers need to make news, to start a bandwagon, to create a web site, to build mailing lists, to hold a few victory parties.
If legalization is on the ballot, vote for it, of course, and sign the petition to get it on the ballot.
But, remember, Ohio State’s football team is not in the national championship because of a strategy of only throwing deep Hail Mary passes. The Buckeyes are there because of relentless work at every level of the game.
Marijuana reform starts locally not because it’s the best strategy. Reform starts locally because it’s the only strategy — at least the only one that ever wins.
— Dennis Cauchon, editor, PotLocal.org