As medical and recreational marijuana is gradually finding its legal footing in states like Colorado and Washington, lawmakers, scientists, activists, and law enforcement are scrambling to establish accurate ways to recognize and enforce marijuana-impaired drivers. Even in states where marijuana is not legal, zero tolerance and per se (legal limit) policies are in place to convict and punish drivers who test positive for marijuana. However, as a new in-depth report from News 21 demonstrates, the policies and science behind enforcing marijuana DUIs has yet to find an accurate standard, leaving many to believe that countless drivers across the U.S. are being needlessly prosecuted.
In the piece "Marijuana pushes the limits in the inexact science of DUID," News 21 delves into the brief history of marijuana DUI standards and the many shortcomings state laws have in properly navigating this new legal terrain. To best understand where much of the contention lies, it is first necessary to understand the current science behind marijuana DUI.
Marijuana can be detected in a driver's system through either a blood or urine test. These tests detect certain compounds left behind by marijuana use:
- Delta-9-tetrahydrocannabinol (THC) is the compound that actually causes a psychoactive effect and produces a "high." This compound is rapidly metabolized in body after inhalation/ingestion.
- 11-nor-9-carboxy-delta-9-tetrahydrocannabinol (THC) is the residual compound that is left after delta-9-THC has been metabolized. It produces no psychoactive effect and is stored in body's fat cells.
Only blood tests can distinguish between and measure a quantity of the two compounds. Urine tests can only detect carboxy-THC. Some states have established no-tolerance policies that can prosecute drivers if any amount of either of these substances is detected in their body. In other states, per se laws have set a legal limit for these substances, much in the way that blood alcohol content tests have been established for drunk driving.
The Inexact Science of Marijuana DUI
The most significant flaw in the enforcement of marijuana DUI is its reliance on carboxy-THC as evidence of impairment. There is a scientific consensus that the compound is benign and it has been well-established that it remains detectable in human body for a substantial period of time. A 2015 study Forensic Science International found that, in some test subjects, even the active delta-9-THC was detectable five days after using marijuana. Even though those subjects were well outside the sphere of the marijuana's psychoactive effects, they would be vulnerable to many state's 9 nanogram limit for operating a motor vehicle.
"Marijuana is not alcohol," Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws told News 5. "We are talking about different families of drugs that interact on different parts of the brain that manifests in different changes of behavior. It's absurd."
Andrea Roth, an assistant professor at the University of California-Berkeley also believes that the per se model of marijuana DUI testing—which is largely inspired by BAC drunk driving testing—is inappropriate. In her research of fatal, single-car crashes, she concluded that THC levels did not contribute to collisions. "There is no demonstrated linear or predictable relationship between THC blood limits and an increased relative crash risk," she says. "We shouldn't be relying on completely, scientifically illegitimate per se laws to convict people."
Additionally, the National Highway Traffic Safety Administration released a drug and alcohol study earlier this year that was presented as the "largest and most carefully controlled" of its kind. In it, they concluded that an "increase in population-based crash risk associated with THC use" was nonexistent.
How Law Enforcement is Adjusting
Law enforcement agencies are beginning to understand that marijuana DUI enforcement requires an approach and protocol that differs from alcohol DUIs. In order to combat the time-consuming process of getting a marijuana DUI suspect to a hospital for a blood test, some departments, like in Washington, have started to use electronic warrants. These warrants allow law enforcement to be in remote contact is on-call judges who can authorize the need for a suspect's blood test in a matter of seconds.
Police departments are also taking a more comprehensive look at what should constitute a DUI evidence and probable cause. Rather than relying solely on a blood or urine tests to detect impairment, some departments are investing heavily in impairment recognition training for officers, so that their observations of a suspected driver are weighted more heavily than the tests. Washington and Colorado each have more than 200 officers who are now certified drug recognition experts and are ready to collect more accurate, observable evidence against suspected drivers.
Gradual Change and Awareness
It isn't just in states where marijuana has been legalized that progress is being made. Last year, the Arizona Supreme Court ruled that 9-carboxy THC readings were not suitable to convict a driver of impaired operation. Oregon, which has legalized marijuana, has also done away with zero-tolerance and per se marijuana DUI laws. Instead they rely primarily on arresting officer testimony.
In Colorado and Washington, lawmakers and law enforcement have turned to DUI prevention and adopted "Drive High, Get a DUI" advertising campaigns. "We've seen our impaired driving numbers dropping as a result," said Jonna VanDyk of the Washington Traffic Safety Commission. "Impaired driving is the single largest cause of fatal collisions in Washington. It is our number one priority."
Have you been arrested for a "drugged driving" charge? My firm, The Samuelson Law Firm, is ready to hear from you. For nearly two decades, I have been aggressively fighting for the rights of the accused. It is essential that—in a fledgling field like marijuana DUI—you retain a Colorado Springs criminal defense attorney who is well-informed on the current laws, protocols, and shortfalls of this practice area. I can ensure that a reduction or dismissal is pursued with knowledge, insight, and diligence.
Don't hesitate to start protecting your future. Contact me to request a free consultation today.