Marijuana Breathalyzer in the Offing?

Monday, June 23rd, 2014

With marijuana legalization making as much progress as it has in the last few years, it was only a matter of time before someone developed a marijuana breathalyzer. It seems a former Royal Canadian Mounted Police is close to doing exactly that.

The new device called the Cannabix was developed by Kal Malhi and will be able to detect whether a person has smoked marijuana in the last two hours. The Cannabix supposedly works in a manner similar to that of traditional breathalyzers used by law enforcement to determine the blood alcohol content of drivers.

"People are becoming very afraid to drink and drive nowadays because they feel that they will get caught and charged, but they’re not afraid to drug and drive because they don't feel that law enforcement will do anything about it," said Malhi.

Although the Cannabix is pending a patent and still has further field testing to undergo, it’s a step in the direction long awaited by law enforcement: a bright line test for DUI of marijuana.

States which have legalized recreational marijuana and some states which have legalized medical marijuana have established a per se impairment level at 5 nanograms of THC per milliliter of blood. Ohio and Nevada have established a per se limit of 2 nanograms of THC per milliliter of blood. Some states which allow medical marijuana have established a zero tolerance rule.

You’ve heard me hoot and holler about the flaws of such standards. THC can stay in a person’s system for over a month. A month after smoking marijuana, the “high” is long gone but, unfortunately, the THC is not. Yet these standards allow officers to arrest someone even though they are no long impaired.

As promising as something like the Cannabix looks to law enforcement, it too does not determine how impaired a person is after smoking. Sure, proximity in time to the smoking of marijuana certainly has a correlation to degree of impairment. (Remember, the Cannabix will tell officers if a person has smoked within the last two hours) We still don’t know how much someone has smoked or how impaired a person is two hours after smoking.

The purpose of alcohol and marijuana DUI laws are to prevent impaired driving. Being impaired is what makes our streets dangerous, not whether someone has smoked marijuana at a given point in the past. The Cannabix creates a DUI standard of how long it’s been since someone has smoked, not whether they are actually impaired.

Imagine if we had the same standard for alcohol: You have one beer at dinner. You drive home an hour and a half later. For whatever reason, you’re pulled over and given a breathalyzer. The breathalyzer tells the officer that you’ve ingested alcohol in the last two hours. Although you’re clearly not impaired after one beer, you’re arrested for DUI simply because you’ve had something to drink in the last two hours.

 

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California DWI – Driving While Addicted

Monday, May 19th, 2014

Believe it or not, it is a crime in California to drive while being addicted to drugs or alcohol.

Lesser known California Vehicle Code section 23152(c) provides: “It is unlawful for any person who is addicted to the use of any drug to drive a vehicle.”

You may be asking yourself the same thing I did when I first read it. Huh?

The “huh?” was the reactionary expression of two other questions: What’s the purpose? And who is an addict?

In the 1965 case of People v. O’Neil, the California Supreme Court addressed both of these issues by looking at the legislative intent of 23152(c). The court determined that “when an individual has reached the point that his body reacts physically to the termination of drug administration, he has become ‘addicted’ within the meaning and purpose of [23152(c)]. Although physical dependency or the abstinence syndrome is but one of the characteristics of addiction, it is of crucial import in light of the purpose of [23152(c)] since it renders the individual a potential danger on the highway.”

While the court focused on the theory that an addict going through withdrawals can pose a risk to the roads, it said that a person need not be going through withdrawals to be arrested, charged, and convicted of California’s driving while addicted law.

“The prosecution need not prove that the individual was actually in a state of withdrawal while driving the vehicle. The prosecution’s burden is to show (1) that the defendant has become ‘emotionally dependent’ on the drug in the sense that he experiences a compulsive need to continue its use, (2) that he has developed a ‘tolerance’ to its effects and hence requires larger and more potent doses, and (3) that he has become ‘physically dependent’ so as to suffer withdrawal symptoms if he is deprived of his dosage.”

So let’s get this straight. You can be charged with a crime if you’re addicted to drugs or alcohol even if you’re not intoxicated or you’re not going through withdrawals. So then that begs the question: What’s the point?

Unfortunately, the California Supreme Court has yet to answer that question.

Fortunately, however, the law does not apply to those who are participating in a narcotic treatment program.

Well it’s nice to know that the law only protects those who are receiving treatment for their disease, but not those who aren’t.

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Does Presence of Marijuana in Blood Constitute Drunk Driving?

Saturday, May 17th, 2014

It is, of course, against the law to driver under the influence of marijuana (sometimes called "stoned driving"). In most cases, a blood sample will be drawn and analyzed to provide evidence of impariment. And as I've discussed in previous posts, there are nearly insurmountable problems law enforcement and prosecutors have with this.  See, for example, Identifying and Proving DUI Marijuana ("Stoned Driving"), Driving + Traces of Marijuana = DUI, How Accurate is Detection and Evidence of Drugged Driving? and DUI Marijuana: Does Marijuana Impair Driving?     

Quite simply, it is extremely difficult if not impossible to prove that the presence of given levels of marijuana in the blood proves that the suspect was impaired when driving.  First, there is very little agreement on how much marijuana it takes to impair a driver's physical and mental faculties.  Second, it is difficult to determine from blood tests what the active levels were at the time of driving. It is a scientific fact that inactive metabolites of marijuana remain in the bloodstream for weeks.  

But, of course, there is a simple solution — similar to one created a few years ago which made it easier to convict citizens accused of driving while under the influence of alcohol.  Fqced with difficulties in proving alcohol impairment, the various states simply passed so-called "per se" laws — laws which made having .08% of alcohol in the blood while driving a crime.  Impairment was no longer an issue to be proven; the crime was simply having the alcohol in your blood.  And the conviction rates increased dramatically.  

Today, a similar approach is being used by a growing number of states:  making the mere presence of marijuana in the blood while driving a crime — regardless of whether it had any effect.

Some courts, however, are beginning to have concerns about this "per se" approach:


Presence of THC Metabolite in Blood Does Not Prove Impaired Driving , Arizona Supreme Court Finds

Phoenix, AZ  – Arizonans who smoke marijuana can’t be charged with driving while impaired absent actual evidence they are affected by the drug, the Arizona Supreme Court ruled Tuesday.

The justices rejected arguments by the Maricopa County Attorney’s Office that a motorist whose blood contains a slight amount of a certain metabolite of marijuana can be presumed to be driving illegally because he or she is impaired, saying medical evidence shows that’s not the case.

The ruling most immediately affects the 40,000-plus Arizonans who are legal medical marijuana users. It means they will not be effectively banned from driving, given how long the metabolite, carboxy-THC, remains in the blood.

It also provides legal protection against impaired-driving charges for anyone else who drives and has used marijuana in the last 30 days — legal or otherwise — as well as provides a shield for those who might be visiting from Washington or Colorado, where recreational use of the drug is legal.

Maricopa County Attorney Bill Montgomery said Tuesday’s ruling will result in roads that are less safe. He said if courts will not accept carboxy-THC readings as evidence of impairment, then there is no way of knowing who is really “high” and who is not…


A breath of fresh air in the ongoing hysteria of MADD's "War on Drunk Driving"…
 

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California Legislature Kills Zero-Tolerance Marijuana DUI Law

Monday, May 12th, 2014

In early April, I wrote about the terrible idea that was AB 2500.

Introduced by Assemblyman Jim Frazier, the original bill would have changed California’s current DUI law making it unlawful for a person to drive with any detectable amount of marijuana in the system. The legislation was later amended to set a limit of two nanograms of THC per milliliter of blood. The law also sought to make it illegal to drive with any trace of any other controlled substance in the system.

Whew! You can all let out a collective sigh of relief because the proposed law was killed in the California legislature.

AB 2500 was defeated by the Assembly Public Safety Committee by a vote of 4-2.

I hate to beat a dead horse, but I simply can’t say it enough. We cannot punish sober drivers merely because they may have smoked marijuana a day, a month, or a week ago.

Unlike alcohol, THC stays in a user’s system for up to weeks at a time even though the intoxicating effects of the marijuana may only last a couple of hours. And unlike the established relationship between blood-alcohol levels and impairment, THC in the blood does not necessarily correlate to impairment. In fact, the National Highway Traffic Safety Administration has said, “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects.”

In late April, the Arizona Supreme Court struck down an Arizona law similar to California’s proposed AB 2500, and rightly so.

Arizona’s high court reaffirmed the trial court’s correct decision to toss the case of Hrach Shilgevorkyan who had been arrested for driving under the influence after a blood test detected the presence of marijuana.

“For example, at oral argument the State acknowledged that, under its reading of the statute, if a metabolite could be detected five years after ingesting a proscribed drug, a driver who tested positive for trace elements of a non-impairing substance could be prosecuted,” said the court in supporting its opinion.

The Court went on to conclude, "Because the legislature intended to prevent impaired driving, we hold that the 'metabolite' reference in [the law] is limited to any of a proscribed substance's metabolites that are capable of causing impairment . . . Drivers cannot be convicted of the . . . offense based merely on the presence of a non-impairing metabolite that may reflect the prior usage of marijuana.”

Let’s hope the California Supreme Court never has to make such an obvious decision.

But you just never know. Frazier’s response to his bill’s failure? “I have eleven more years” to continue working on the bill.

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California Assemblyman Proposes Marijuana Zero-Tolerance DUI Standard

Friday, April 11th, 2014

We recently referred you to an American Bar Association Journal article in which Lawrence Taylor was interviewed about the difficulties of correlating traces of marijuana in the blood and intoxication. We also mentioned the use of zero-tolerance laws for marijuana by some states as a way to address issue. It seems that one California assemblyman looks to include California in that list of zero-tolerance states.

Currently, for a person to be convicted of a California marijuana DUI, it must be proven that they were “under the influence.” A person is under the influence when his or her physical or mental abilities are impaired to such a degree that he or she no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.

Assemblyman Jim Frazier recently introduced AB 2500. The bill, if passed, would change California’s current DUI law making it unlawful for a person to drive with any detectable amount of marijuana in the system. The law also seeks to make it illegal to drive with any trace of any other controlled substance in the system.

The proposed language of the law would read:

“It is unlawful for a person to drive a vehicle if his or her blood contains any detectable amount of delta-9-tetrahydrocannabinol of marijuana or any other drug classified in Schedule I, II, III, or IV under the California Uniform Substances Act (Division 10 (commencing with Section 11000) of the Health and Safety Code).”

The legislature rejected a similar bill introduced last year by Senator Lou Correa. Rightly so. Let’s hope they do the same to AB 2500.

Delta-9-tetrahydrocannabinol (THC) can remain in a person’s blood for up to weeks and longer after marijuana use, and well beyond the point at which a person cannot safely operate a vehicle. That doesn’t matter to those who support the proposed law. It seems they would be okay with punishing perfectly sober drivers simply because they ingested marijuana at some point in the last several weeks.

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