The Ohio Supreme Court recently decided in State v. Balmert that a driver who tested above the legal limit for marijuana was liable for aggravated vehicular assault under Ohio Revised Code 2903.08(A)(1)(a) when he hit a highway patrol officer with his car. Balmert highlights a growing legal tension between per se drug-concentration statutes and traditional proximate-cause principles, particularly where the substance detected may not indicate present impairment.
The central issue in the case was proximate cause, specifically, whether the defendant’s earlier marijuana use made the type of harm that occurred reasonably foreseeable. The Court says that the State met its burden in proving with sufficient evidence that the marijuana use was, in fact, a proximate cause of the incident. On the day of the accident, a highway patrol officer was directing traffic at an intersection where the traffic light had gone out. Edward Balmert stopped at the intersection and, as he turned left, accidentally hit the officer, injuring him. Upon request, he provided a urine sample for drug testing and told officers that he had used a hemp-based product that morning. The accident occurred at 6pm during clear weather conditions and good visibility. The drug test came back with a positive result for marijuana metabolites five times over the legal limit.
At trial, Balmert was convicted on two charges: aggravated vehicular assault and operating a vehicle while under the influence of a listed metabolite of a controlled substance. Importantly, the OVI charge1 was dismissed by the trial court.
Balmert appealed, arguing that the State did not meet its burden in proving proximate cause beyond a reasonable doubt. The Appeals Court disagreed with Balmert and upheld the ruling. Balmert then appealed to the Ohio Supreme Court.
The Court inquired “whether the State showed the proximate cause required . . . [which is] whether the harm of injuring a person on the road was a foreseeable consequence of driving while having a concentration of marijuana metabolites in excess of the legal limit[.]” The Court concluded that foreseeability was established because Balmert tested above the statutory limit for marijuana metabolites, marijuana is known to slow reflexes, and two officers believed he appeared to be under the influence. The majority goes on to specify that this opinion “is not meant to construe aggravated vehicular assault as a strict-liability offense once it has been established that the defendant had a concentration of marijuana metabolites in his or her urine that exceeds [legal limits.]” The Court points out that there may be ways a person could cause harm to someone in this scenario that is entirely unforeseeable. However, the Court gives no examples of this kind of unforeseeable harm and does not offer a test for lower courts to use in determining if the harm is foreseeable.
The Court does not acknowledge that the trial court determined that Balmert was not under the influence of marijuana at the time of the accident, at least not enough for an OVI. This means the trier of fact determined the marijuana did not have an effect—legal or otherwise—on Balmert’s driving and did not credit the testimony of the officers that Balmert was high. Reviewing courts afford a trial court’s factual determinations with significant deference; the trial court is in the best position to function as the fact finder in the case. Given the trial court’s findings here, it is unclear how this accident could be viewed as a foreseeable consequence of using marijuana many hours earlier. If a driver is no longer under the effects of the drug, then how could the possible harms of having used it be foreseen? Further, it calls into question the majority’s reliance on testimony as to the effects of marijuana—what purpose could this testimony serve if the driver was not under its influence?
The dissent points out that the majority “simply reaches the conclusion that the accident was a foreseeable consequence of Balmert’s marijuana use earlier that morning.” But because the marijuana metabolites prove only that Balmert had used a THC-based substance, not that he was actively impaired when the accident occurred, there must be more than a conclusory assertion that prior marijuana use rendered the accident foreseeable. Without evidence tying the metabolite concentration to actual impairment at the time of driving, the causal chain breaks.
The guidance for lower courts: a positive urine test for marijuana satisfies proximate cause even if the driver is not driving under the influence. This has the effect of creating exactly what the majority claims not to do: a de facto strict liability regime for drivers that use marijuana. These metabolites can stay in a person’s system for days or weeks even while the active ingredient, THC, leaves the body relatively quickly.2 Drivers in Ohio should understand: a positive marijuana urine test will result in a legal finding of being under the influence.