[Cite as State v. Duncan, 2025-Ohio-1153.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-240190 TRIAL NO. C/22/TRC/28666 Plaintiff-Appellee, :
vs. : OPINION CURTIS DUNCAN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 31, 2025
Connie M. Pillich, Hamilton County Prosecuting Attorney, and Sean Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant Public Defender, for Defendant-Appellant. ZAYAS, Judge.
{¶1} After entering a no-contest plea, Curtis Duncan was found guilty of
operating a motor vehicle (“OVI”) with a prohibited concentration of marihuana1
metabolite in his urine, in violation of R.C. 4511.19(A)(1)(j). In two assignments of
error, Duncan argues that the trial court erred in overruling his motion to suppress
because his arrest was not supported by probable cause, and that the court erred in
overruling his motion to dismiss the charge because the marihuana-metabolite statute
violated his equal-protection rights. For the following reasons, we affirm the judgment
of the trial court.
Factual Background
{¶2} After encountering a sobriety checkpoint, Duncan was charged with
driving impaired in violation of R.C. 4511.19(A)(1)(a) in the case numbered
C/22/TRC/19194. The traffic citation noted that the charge was based on a urine
screen. Duncan filed a motion to suppress challenging whether there was probable
cause to arrest him and whether the field sobriety tests were conducted in substantial
compliance with the National Highway Traffic Safety Administration (“NHTSA”)
standards.
{¶3} A trooper, who worked for the Ohio State Highway Patrol, was assigned
to an OVI checkpoint in Cheviot when he encountered Duncan. When the trooper
spoke with Duncan, he noted an odor of alcohol on his breath. Duncan admitted that
he was coming from a celebration where he consumed a small amount of wine. The
trooper observed that Duncan was somewhat disoriented and had an abnormal speech
pattern with delayed responses and the interjection of irrelevant information. Based
1 The statute spells marihuana with an “h,” but the briefs and some of the cases spell it with a “j.” OHIO FIRST DISTRICT COURT OF APPEALS
on these observations, the trooper asked Duncan to perform standardized field
sobriety tests (“SFST”) to either confirm or refute his suspicion that Duncan was
impaired.
{¶4} The trooper was trained in conducting SFSTs at the Ohio State Highway
Patrol Academy in November of 2021. After a 40-hour training, the trooper received
his certificate for completing the training. The trooper administered the horizontal
gaze nystagmus (“HGN”) test first and testified that he completed the pre-medical
checklist for all of the tests before conducting the HGN to ensure Duncan had no head
injury or medical issues that could potentially cause adverse effects on the SFSTs.
{¶5} The trooper used the tip of a pen as the stimulus and testified to the
steps he took in conducting the test. The trooper detected a lack of smooth pursuit in
both eyes and nystagmus at maximum deviation in both eyes, for a total of four out of
six clues. The trooper did not see the presence of nystagmus prior to a 45-degree angle.
The trooper testified that nystagmus can be caused by alcohol or several different drug
categories.
{¶6} While the trooper was conducting the HGN, Duncan told him that the
stadium lights were bothering his eyes. The trooper instructed Duncan to face away
from the lights and conducted the test. The trooper acknowledged that the NHTSA
manual instructs that a subject should not be facing flashing or strobe lights during
the test because a subject’s eyes may move toward the lights, producing an effect
similar to nystagmus. The trooper testified that the stadium lights were not flashing
or strobe lights.
{¶7} Next, the trooper administered the walk-and-turn (“WAT”) test on a
blacktop-paved parking lot. After the trooper demonstrated the test, provided the test
instructions to Duncan, and confirmed Duncan understood the instructions, he had
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Duncan perform the test. Duncan moved his feet or lost his balance while in the
starting position, did not step heel to toe, and started the test before instructed to do
so, for a total of three out of eight clues. The test could not be completed because
Duncan was unable to follow the instructions. After taking the required nine steps,
Duncan did not turn and take nine steps back, and instead continued to walk. The
trooper also testified that Duncan broke his starting position during the HGN and
WAT tests, and that he had to be reminded to track the stimulus on the HGN test. The
trooper administered the one-leg-stand (“OLS”) test and observed one out of four
clues. Duncan put his foot down to maintain his balance during the test.
{¶8} Based on his training, experience, and observations, and Duncan’s
admission of consuming alcohol, general disorientation, and inability to follow simple
instructions, the trooper arrested him for driving while under the influence. The
trooper opined that Duncan was appreciably impaired.
{¶9} The trooper transported Duncan to the Cheviot Police Department.
Duncan submitted a urine sample that showed a level of marihuana metabolites over
the legal limit.
{¶10} Duncan argued that the trooper had no probable cause to arrest him
because the trooper did not observe any impaired driving or slurred speech and
driving after consuming one drink is not illegal. With respect to the HGN test, Duncan
argued the test was not conducted in substantial compliance because he was facing
stadium lights, and restarting the test could cause eye fatigue. Duncan did not
challenge the administration of the WAT and OLS tests.
{¶11} After taking judicial notice of the NHTSA standards, the trial court
found that the trooper was NHTSA certified to conduct the testing, and he
administered all of the SFSTs in substantial compliance with NHTSA standards. The
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court further found that the trooper had probable cause to arrest Duncan after
detecting an odor of alcohol on his breath, along with Duncan’s admission of
consumption, his delayed speech patterns and disorientation, his inability to follow
simple instructions, and his performance of the SFSTs.
{¶12} After the motion was denied, a new citation was issued, charging
Duncan with a violation of R.C. 4511.19(A)(1)(j) in the case numbered
C/22/TRC/28666. The state dismissed the initial charge and proceeded solely on the
impairment charge based on marihuana. Duncan notified the court that he would be
seeking to dismiss the charge, and the case was continued for a hearing on the motion
to dismiss.
{¶13} Duncan sought to dismiss the charge alleging that the “per se marihuana
metabolite provision discriminates against unimpaired drivers whose blood or urine
contains the marihuana metabolite 11-nor carboxy-tetrahydrocannabinol (“THCA”).”
{¶14} Before the hearing started, Duncan requested “the record from
C/22/TRC/19194 to be adopted into the record of this case number.” Duncan
explained that, “[w]e would like the appellate court to be able to consider that motion.”
The prosecutor had no objection and responded, “This is obviously two different case
numbers arising out of the same incident. It’s no different than if there were an A and
a B charge and the A was dismissed. I think it’s appropriate that all the previous
testimony in the record be incorporated into this case.” The trial court incorporated
the record of C/22/TRC/19194 into the present case and proceeded with the hearing
on the motion to dismiss.
{¶15} An expert in clinical toxicology, clinical pharmacology,
pharmacokinetics, and psychopharmacology testified that THC is the chemical in a
marihuana plant that causes impairment, and THCA is a metabolite of THC that is an
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inactive chemical that does not cause impairment. The liver produces THCA from
THC. When a urine screen does not detect THC, there is no evidence of impairment.
The expert further opined that a THCA urine level of 11 is a trivial level.
{¶16} When marihuana is smoked, it is absorbed into the blood and some is
absorbed by fat, some goes to the brain causing impairment, and some is metabolized
and eliminated through urine. This process in a chronic user can take days or months,
and the THCA can remain in the urine for up to 90 days after ingesting marihuana.
Habitual users have a large fat store of THC that is slowly leaked over time. The leaked
THC goes to the liver and is metabolized to THCA. Dehydration can cause a higher
level of THCA because there is less urine in the bladder. The presence of THCA does
not prove recent marihuana consumption or intoxication. The expert testified to a
reasonable degree of scientific certainty that there is no proof that Duncan was
intoxicated that night.
{¶17} On cross-examination, the expert agreed that the speed at which THC is
metabolized varies from person to person. Metabolism is slower if the liver is not
healthy, and the older a person is, the slower the liver will process it. Large individuals
must consume more THC to feel the effects of intoxication. If the urine volume is low,
the THCA level will be higher than if the urine volume were higher. THCA in urine
does not prove recent use or intoxication, but it could be attributed to recent use.
{¶18} Duncan argued that the marihuana-metabolite provision violated the
Equal Protection Clause as the presence of the metabolite does not indicate
impairment. He further argued that the law does not equally protect all drivers from
being falsely convicted of driving impaired because the per se limit based on a THCA
level is arbitrary and irrational and does not serve a legitimate governmental purpose.
{¶19} The trial court overruled the motion after finding that Duncan did not
6 OHIO FIRST DISTRICT COURT OF APPEALS
establish a suspect class or fundamental right at stake, the State had a rational basis
in eliminating drivers impaired by marihuana, and that the statute comports with the
public policy of reducing the number of people who drive under the influence of
marihuana. Relying on State v. Doane, 2020-Ohio-900 (5th Dist.), the court found
that the statute was reasonably related to the implementation of a legitimate
governmental interest.
Motion to Suppress
{¶20} In his first assignment of error, Duncan contends that the trial court
erred in overruling his motion to suppress because the arrest was not supported by
probable cause and the SFSTs were not conducted in substantial compliance with the
NHTSA manual.
{¶21} The State argues that this issue was not preserved for appellate review
in this case because the entry did not specify that the trial court adopted its previous
findings and decision to overrule the motion to suppress. Absent a second entry, the
State contends, there is no final order, divesting this court of jurisdiction. The State
cited no authority to support this proposition, and we could find none.
{¶22} The court incorporated the entire record of C/22/TRC/19194, which
included the entry denying the motion, the transcript of the proceedings, and the
motion to suppress filed by Duncan. The State agreed with Duncan’s request and
pointed out that the scenario was no different than a case with an A and a B charge,
where one charge has been dismissed. As the State acknowledged in its brief, the
purpose of incorporating the record was to preserve the denial of the motion to
suppress for appellate purposes. By agreeing to Duncan’s request, the State waived
any objection on appeal. See State v. Childs, 14 Ohio St.2d 56 (1968), paragraph three
of the syllabus.
7 OHIO FIRST DISTRICT COURT OF APPEALS
{¶23} Appellate review of a motion to suppress presents a mixed question of
law and fact. State v. Burnside, 2003-Ohio-5372, ¶ 8. When ruling on a motion to
suppress, this court must defer to the trial court’s factual findings if competent,
credible evidence exists to support those findings. See id. “Accepting these facts as
true, the appellate court must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal standard.”
Id.
{¶24} The standard for determining whether an officer had probable cause to
arrest a suspect for OVI is whether the facts and circumstances within the police
officer’s knowledge are sufficient to cause a reasonably prudent person to believe that
the defendant was driving under the influence. See State v. Ruberg, 2013-Ohio-4144,
¶ 11 (1st Dist.); State v. Homan, 89 Ohio St.3d 421, 427 (2000). In making this
determination, an appellate court examines the totality of facts and circumstances
surrounding the arrest. Homan at 427.
{¶25} In this case, the trial court found that the trooper had probable cause to
arrest Duncan for driving impaired based upon the following facts and circumstances:
(1) an odor of alcohol on Duncan’s breath; (2) Duncan’s admission of consumption;
(3) Duncan’s delayed speech patterns and disorientation; (4) Duncan’s inability to
follow simple instructions; and (4) the trooper’s observations of Duncan’s
performance and results of the SFSTs.
{¶26} Under the totality of the circumstances we cannot conclude that the trial
court erred in finding that the trooper had probable cause to believe that Duncan was
operating a vehicle under the influence. These facts and circumstances, when
considered as a whole, would have justified an objectively reasonable officer in
believing that Duncan had been driving impaired. Thus, there was sufficient evidence
8 OHIO FIRST DISTRICT COURT OF APPEALS
to establish probable cause to arrest.
{¶27} Duncan argues that this court should disregard the SFSTs because the
tests were not administered in substantial compliance with NHTSA standards. When
the SFST’s are excluded, Duncan contends that the trooper lacked probable cause to
arrest Duncan. However, the court found that the trooper conducted the SFSTs in
substantial compliance with NHTSA. Significantly, Duncan did not challenge the
court’s factual findings or legal conclusions on appeal with respect to the court’s
determination that the SFSTs were conducted in substantial compliance with NHTSA.
Moreover, Duncan appears to concede that the trooper had probable cause to arrest
Duncan when the SFSTs are considered.
{¶28} Accordingly, we overrule Duncan’s first assignment of error.
Motion to Dismiss
{¶29} Next, Duncan argues that R.C. 4511.19(A)(1)(j)(viii)(II) violated his
right to equal protection as the testing of the marihuana metabolite THCA, an inactive
chemical, does not indicate impairment. We review the trial court’s denial of a motion
to dismiss de novo. See State v. Campbell, 2013-Ohio-5612, ¶ 3 (1st Dist.).
{¶30} The Equal Protection Clauses of both the United States and Ohio
Constitutions provide that all persons are entitled to the equal benefit of the laws.
McCrone v. Bank One Corp., 2005-Ohio-6505, ¶ 6. The limitations placed upon
governmental action by the state and federal government are essentially the same.
Ohio Apt. Assn. v. Levin, 2010-Ohio-4414, ¶ 33. “Equal protection does not forbid the
legislature from making classifications but simply prohibits ‘treating differently
persons who are in all relevant respects alike.’” State v. Klembus, 2016-Ohio-1092, ¶
8. Both clauses require all similarly-situated individuals be treated in a similar
manner. McCrone at ¶ 6.
9 OHIO FIRST DISTRICT COURT OF APPEALS
{¶31} Statutes are presumed constitutional. State v. Anderson, 57 Ohio St.3d
168, 171 (1991). Government actions that affect suspect classifications or fundamental
interests are subject to strict scrutiny by the courts. Eppley v. Tri-Valley Local School
Dist. Bd. of Edn., 2009-Ohio-1970, ¶ 14. In the absence of a suspect classification or
fundamental interest, the state action is subject to a rational-basis test. Id.
{¶32} Under the rational-basis test, a statute will be upheld if it bears a
rational relationship to a legitimate governmental interest. State v. Topolsky, 2015-
Ohio-4963, ¶ 30 (10th Dist.). “The rational-basis test involves a two-step analysis. We
must first identify a valid state interest. Second, we must determine whether the
method or means by which the state has chosen to advance that interest is rational.”
Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 2010-Ohio-4908, ¶ 19, quoting
McCrone at ¶ 9.
{¶33} Duncan acknowledges that the rational-basis standard of review
applies, and that the State has a legitimate interest in highway safety and keeping
impaired drivers off the road. Duncan argues that the statute violates equal protection
because “the testing of the marijuana metabolite THCA, an inactive chemical, does not
indicate impairment.”
{¶34} In conducting any equal-protection analysis, the first step is to examine
the classifications created by the statute in question. State v. Schultz, 2015-Ohio-
2252, ¶ 12 (12th Dist.), citing Burnett v. Motorists Mut. Ins. Co., 2008-Ohio-2751, ¶
31. “[W]here there is no classification, there is no discrimination which would offend
the Equal Protection Clause.” Burnett at ¶ 31. Duncan contends the statute
impermissibly discriminates against drivers who have consumed marihuana, present
with metabolites in their urine, but are not actually impaired. But, as the Twelfth
District determined, “it is readily apparent from the language of the statute, its
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legislative history, and its practical application that the statute aims to distinguish
between unimpaired motorists and motorists who are under the influence of
marijuana.” Schultz at ¶ 15.
{¶35} Like Duncan, Schultz provided scientific evidence that “past marijuana
use could possibly result in a driver having 35 nanograms of marijuana metabolites
per milliliter of his or her urine, yet the driver would not be functionally impaired.”
Id. at fn. 1. As the Schulz court concluded, “the evidence does not, however,
demonstrate that there is no rational connection between the statutory marijuana
metabolites standard and impairment. We are mindful that ‘[o]ur equal protection
review does not require us to conclude that the state has chosen the best means of
serving a legitimate interest, only that it has chosen a rational one.’” Id., quoting
Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 354 (1994). The court
concluded that, “Differences in treatment based on the use of marijuana before
operating a motor vehicle does not impinge upon a fundamental right or burden a
suspect class.” Id. at 17. Ultimately, the court held that “the rational basis standard
unquestionably supports the General Assembly’s endeavor to maintain safety on
public roadways by providing a mechanism by which to prosecute individuals who
operate a motor vehicle while under the influence of marijuana.” Id.
{¶36} In reaching this conclusion, the court relied on this court’s analysis in
State v. Whalen, 2013-Ohio-1861 (1st Dist.). In Whalen, both the State and Whalen
provided expert testimony regarding the rapid dissipation of THC and the science
underlying the testing of the marihuana metabolite THCA. Id. at ¶ 5. Whalen
challenged the statute as vague and overbroad, although “his real quibble seems to be
with the legislative decision to criminalize driving based upon the presence of a
marihuana metabolite that may not itself cause impairment.” Id. at 16. This court
11 OHIO FIRST DISTRICT COURT OF APPEALS
explained:
[U]nlike some other states, Ohio does not prohibit driving with any
amount of a marihuana metabolite in one’s body but rather sets certain
maximum limits that may not be exceeded. Compare People v.
Gassman, 251 Ill.App.3d 681, 622 N.E.2d 845, 190 Ill. Dec. 815 (1993);
State v. Phillips, 178 Ariz 368, 873 P.2d 706 (1994). The General
Assembly, in constructing the per se statute, expressly considered the
arguments of those who claimed that the law lacked a direct correlation
between the prohibited amount of marihuana and its metabolite in a
driver’s system and impairment. Senators Steve Austria and Patricia
Clancy, two of the bill’s sponsors, noted during deliberations on the bill
that they had worked closely with forensic toxicologists to establish the
precise levels at which driving is prohibited in the statute and that the
levels in the bill were not only consistent with federal standards, but that
the forensic toxicologists who had participated in setting those levels
had unanimously agreed that anyone driving with the levels of the
substance listed in the bill definitely would be impaired. See 2005 OH
Sub.S.B. 8, Third Consideration, available at
http://www.ohiochannel.org Ohio Senate Session (February 16, 2005)
14:15:57 (accessed May 1, 2013).
Id. at ¶ 16, fn. 2.
{¶37} The court further noted that driving is a privilege, not a right, and
Whalen had no constitutional right to drive while under the influence. Id. at 17, 15.
Because the State has a legitimate interest in prohibiting impaired driving, “the
General Assembly acted well within its police powers in criminalizing driving with a
12 OHIO FIRST DISTRICT COURT OF APPEALS
prohibited amount of marihuana or marihuana metabolite in a person’s blood or
urine.” Id. at ¶ 17.
{¶38} Moreover, every appellate court that has considered this marijuana-
metabolite argument has held that R.C. 4511.19(A)(1)(j)(viii)(II) is constitutional. See,
e.g., State v. Naylor, 2024-Ohio-1648, ¶ 85, 90 (11th Dist.) (“We agree with our sister
districts and conclude R.C. 4511.19(A)(1)(j)(viii)(II) is not void for vagueness. We
agree with the Whalen court and conclude R.C. 4511.19(A)(1)(j)(viii)(II) does not
violate substantive due process.”); State v. Doane, 2020-Ohio-900, ¶ 25 (5th Dist.)
(“For the foregoing reasons, we agree with those district courts of appeal which have
found that the marijuana metabolite per se statute is not unconstitutional on equal
protection or due process grounds.”); Topolosky, 2015-Ohio-4963 at ¶ 39 (10th Dist.)
(Because we find that R.C. 4511.19(A)(1)(j)(viii)(II) is not void for vagueness and does
not violate constitutional guarantees of equal protection and due process, we overrule
Topolosky’s fourth assignment of error.”).
{¶39} Following our precedent in Whalen and our sister courts, we overrule
the second assignment of error.
Conclusion
{¶40} Having overruled Duncan’s two assignments of error, we affirm the
judgment of the trial court.
Judgment affirmed.
KINSLEY, P.J., and BOCK, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.