A proposal to decriminalize marijuana in the city of Athens would not affect offenses that occur on the Ohio University campus, which account for around 70 percent of misdemeanor marijuana cases handled in Athens County Municipal Court, Athens Law Director Lisa Eliason said Thursday.
Moreover, she said the language of the proposed ballot initiative would not allow her office to amend marijuana charges to a lesser offense. Currently, that option is available, which has the effect of avoiding suspension of offenders’ driver’s licenses and the loss of federal student aid, Eliason said.
The Athens Cannabis Ordinance (TACO) was submitted to the city Auditor’s office May 27 by a group of Athens residents. The signature collection process will begin after a 10-day review period, a press release from the group announced late last month.
The group must gather 317 signatures by mid-July to put the ballot initiative to city voters in November. The initiative proposes to lower fines to zero for misdemeanor-level marijuana offenses and one dollar for felony-level offenses within the city of Athens with no incarceration, probation, court costs or any other punitive measures imposed.
A similar law in Toledo had provisions regarding felony-level offenses challenged in a lawsuit from Ohio Attorney General Mike DeWine that was joined by the Lucas County sheriff and prosecutor.
In that case, the court issued a permanent injunction on the felony-related components of the citizen-passed ordinance in part because it called for zero fines, in conflict with state law. This is why the Athens proposal includes a $1 fine for felony-level offenses in an attempt to preempt state challenge.
Eliason said, however, that if voters pass the Athens proposal, the resulting ordinance could still be challenged in Athens County court.
“The Toledo trial court decision would have no precedential value in our trial court but could be considered persuasive authority,” Eliason said.
She noted that her office prosecutes misdemeanor offenses – most commonly possession of marijuana and paraphernalia – while the office of Athens County Prosecutor Keller Blackburn prosecutes felony-level offenses.
In Ohio, possession of marijuana becomes a felony offense if the amount is over 200 grams. Any sale of marijuana in Ohio is a felony offense, though a “gift” of 20 grams or less is a misdemeanor offense. An ounce has 28 grams.
Eliason said that about 70 percent of the marijuana and paraphernalia cases her office handles come from charges under the Ohio Revised Code generated by Ohio University police officers for offenses on OU property.
“Ohio University police charge under state law and have no jurisdiction to charge under the Athens City Code,” Eliason said. “This proposed initiative petition contains a mandate for Athens city police only. Courts have held that city ordinances have no effect on state property.”
Eliason also pointed out that under Ohio law a conviction for minor misdemeanor possession of marijuana or paraphernalia triggers a mandatory vehicle operator’s license suspension.
That provision of Ohio law was upheld by the Ohio Supreme Court even if the conviction was unrelated to operating a vehicle, she said, with the Supreme Court reasoning that driving is a privilege not a right.
While a conviction could be sealed in a year, she said, the license suspension remains on the driving record as “drug abuse.” Moreover, she noted, drug convictions must be reported on federal student aid forms and could result in the loss of aid.
“When appropriate, this office has amended minor misdemeanor marijuana and paraphernalia charges to minor misdemeanor disorderly conduct charges,” Eliason said. “With those amendments, the defendant did not receive a license suspension or have to report a drug conviction on the FAFSA form for federal student financial aid.”
The proposed initiative petition creates the offense of possession of drug paraphernalia when none previously existed in the Athens City Code, Eliason said.
Section R of the proposed initiative petition states, “Athens police officers and the Athens City Attorney shall charge and prosecute all such offenses under this city ordinance rather than state code as permitted by Ohio State Constitution Article 18 Sec. 3.”
This means that under this proposal the Law Director’s office cannot amend a marijuana or paraphernalia charge and must proceed on those city cases as charged, Eliason said. Upon conviction of the charge of possession of marijuana or paraphernalia, the conviction will appear in the court computer and is a public record.
Although the conviction will carry no fine or court costs, the conviction will be available as a public record and may have to be self-reported on the FAFSA as a drug conviction for federal financial aid purposes, Eliason said.
She speculated that the section of law disallowing the charging of court costs could be subject to legal challenge because Athens County Municipal Court is created by and operates according to state law, with court costs also set by state law. In local Municipal Court, current costs for a conviction are $104.
Athens County Prosecutor Blackburn said in an interview Friday that he doesn’t believe the city of Athens has the authority to affect state of Ohio law.
“It doesn’t matter what (they propose); they can’t make a felony the General Assembly has passed and the governor has signed go away or be changed,” he said.
Blackburn also cited legislation currently being supported by the Ohio County Commissioners Association that would give county boards of elections the authority to disallow unconstitutional ballot petition initiatives.
Blackburn said that most of the time, unless the offense is associated with harder drugs such as heroin or OxyCodone, his office places those accused of felony-level marijuana offenses in its diversion program.
“But (marijuana) is illegal currently and there’s a rational basis for why it’s illegal,” he said. “We have issues with operating a motor vehicle under the influence and it’s what our General Assembly has chosen.”
If legalization were to happen, or even without it, Blackburn said the state needs to work on more comprehensive and nuanced education regarding substance abuse, illegal drug use and managing legal drug use.
At the state level, legislation legalizing the use of medicinal marijuana for a limited number of conditions is currently awaiting the governor’s signature or veto.