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.)

  1. State government has one set of marijuana laws (passed by the Ohio legislature).
  2. 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
City Yes Yes Local law
Village Yes Yes Local law
Township No Yes State law

State law 

 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.

Pot penalties
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
Minor $150 None

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.

Local law

Click on the links at the top of this web site to learn which communities criminalize marijuana and paraphernalia or suspend driver’s licenses for pot.

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:

  1. Type your city’s name and “municipal code” or “codified ordinances.”
  2. Go to “General Offenses.”
  3. 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.”

Look for:

  • 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:

Posession
  Number of municipalities Total Population
1st degree 17 405,449
2nd degree 0
3rd degree 5 101,527
4th degree 18 509,425
Total criminalizing 40 1,016,401

 

Paraphernalia
Number of municipalities Total Population
1st degree 7 167,420
2nd degree 8 871,856
3rd degree 2 70,646
4th degree 33 689,945
Total criminalizing 50 1,799,867

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. 

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