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
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.
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
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
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