On Aug. 6, Ohio’s licensed marijuana dispensaries were finally authorized to make their first recreational marijuana sales. Now in Ohio, as in 30 other states, anyone 21 and over can actually legally purchase marijuana and marijuana infused products for recreational use. “Tax weed like alcohol” they said; well, now, in Ohio, that’s a reality. The December 2023 legalization of recreational marijuana in Ohio seemed to be the final step in a long and tortured history of marijuana’s legal evolution and social acceptance in our state.
But marijuana has been decriminalized in Ohio for several years, and medical marijuana has been legal in Ohio since 2016. Unsurprisingly, though, as with many long-awaited social changes, the onset legal recreational marijuana means little to those who have spent years, perhaps decades, cursing and criminalizing the substance. “Old habits die hard” as they say, and apparently, this is proving to be the case for more than one law enforcement agency.
Recently, this author represented two clients who were wrongfully charged with possession of marijuana in two separate, Northeast Ohio municipal courts. Both clients were charged with various traffic offenses and possession of a small amount of marijuana. The problem is that both clients had valid medical marijuana cards and, since December 2023, simple possession of marijuana in Ohio by an adult is not a crime (these individuals were not operating their vehicles under the influence of marijuana, which is a crime). Yet, officers from two separate police departments still wrote tickets to these two separate individuals for marijuana possession, forcing them to appear in court (and incur all the associated inconveniences and expenses). Naturally, in both cases the charges were dismissed when the case came before the Judge; had the cases gone to a trial, the municipalities would have lost because simple possession of a small amount of marijuana is legal.
Interestingly, in dismissing one set of charges, a local judge asked this author why, in my opinion, police officers (and state Troopers) were continuing to write tickets for simple marijuana possession offenses, even for people with medical marijuana cards, when possession of marijuana is legal? “Old habits die hard”, I replied, explaining that these officers have likely wrote thousands of these tickets over the course of many years and at this point, legal or not, it is probably just a matter of habit, all at the Defendants’ inconvenience and expense. With a concerned glare, the Judge agreed, and dismissed the charges.
But while our state’s majority view of marijuana possession has changed, how far will that legality extend? At what point in Ohio will holding an unlit marijuana cigarette be the equivalent of holding an unopened beer? Probably, not for a while. Appellate court trends in Ohio show that we still have a long way to go before marijuana and alcohol are truly on par with one another. For example, Ohio courts regularly hold that if, during a traffic stop, an officer smells the odor of marijuana, they have probable cause to search the entire vehicle and the trunk for marijuana. State v. Hall (2024); State v. Payne (2023). What? But it’s legal, right? Right, but in the eyes of the courts, smelling (even unburnt, “raw”) marijuana apparently raises suspicion enough to justify the search of someone’s entire car, without a warrant.
So, for example, someone driving home after legally purchasing some marijuana from an Ohio dispensary is subject to a warrantless, government vehicle search if an officer catches a whiff of their legally acquired product. If nothing else, this paradox in the inconsistent treatment of marijuana shows that we remain undecided as Ohioans whether marijuana is inherently criminally suspicious or not. With time this may change.
While for years prosecutors and judges jailed people for possessing marijuana, now, adults can legally buy weed, for recreational use, at dispensaries. Thus, “old habits die hard” but, as we have seen, they do in fact die. It just takes a while, and only time will tell how long it takes until the police and the courts catch up with the times and recognize that the mere possession of marijuana no longer evidences criminality in our state.
Larry W. Zukerman is the managing partner of Zukerman, Lear, Murray & Brown Co., LPA in Cleveland and Adam M. Brown is a partner attorney at the firm.
