Should California Have a Legal Limit for DUI of Marijuana?

Friday, March 23rd, 2018

Prop. 64 is in full swing here in California. While medicinal marijuana has been legal in California since 1996, recreational marijuana is now available for adults who are at least 21-years-old, subject to certain limitations. Up to an ounce of marijuana can be purchased per day and consumed in private locations. The private location cannot, however, be in a vehicle whether you are the driver or the passenger. More importantly for us, a person still cannot drive while under the influence of marijuana.

To be legally under the influence of marijuana a person’s mental or physical abilities are impaired to a degree that they can no longer drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstance.

This definition of impairment is the same for a DUI of alcohol as well. However, with a DUI of alcohol, a person need not be under the influence as long as they have a blood alcohol content of at least 0.08 percent at the time of driving. The purpose behind this rule is that science has established a strong correlation between a blood alcohol content of 0.08 percent or higher and the definition of impairment spelled out above.

Alcohol, which is water-soluble, is absorbed and eliminated from the body relatively quickly. In most circumstances, if a person consumes alcohol during an evening of drinking, the alcohol should be eliminated by the following morning.

The same, however, cannot be said of marijuana. When someone consumes marijuana, the “high” comes from tetrahydrocannabinol (THC) and can last several hours. THC is fat-soluble and can stay in a person’s system for weeks, possibly longer, even though the “high” has long since worn off. As such, there’s little to no correlation between the amount of THC in a person’s system and whether they meet the definition of being under the influence stated above.

Notwithstanding the lack of a correlation between the amount of THC in a person’s system and degree of impairment, Washington State, which has also legalized recreational marijuana, set a limit of 5 nanograms of THC per milliliter of blood in a person’s system.

Lt. Rob Sharpe, who works for the Washington State Patrol’s impaired driving unit, told the Los Angeles Times he believes establishing a legal limit for pot is a necessity.

“If I don’t know how much marijuana I can consume and safely drive, how can I be held to a standard that it’s unsafe to drive?” he asked.

The problem with Washington’s “per se” limit is that a regular user of marijuana can have 5 nanograms of THC per milliliter of blood weeks after having consumed marijuana.

It doesn’t take a lawyer or a judge to tell you that the purpose of DUI laws, whether they’re for DUI of alcohol or DUI of marijuana, is to protect the driver and the public as a whole from impaired driving because that is what’s dangerous. And now that marijuana is legal in both California and Washington, as well as a number of other states, it is no different than alcohol. Like alcohol, a person should be free to consume something that they are legally allowed to consume without fear of being arrested for a DUI days or weeks later.

To have a per se limit for THC, as Washington does, would allow law enforcement to arrest someone for a DUI of marijuana weeks after they have consumed marijuana even though they are no longer impaired. It would be the same as if law enforcement arrested someone for a DUI of alcohol weeks after a night of drinking when they haven’t had a drop of alcohol since that night.

Should there be a per se legal limit for marijuana? Absolutely not, at least not until science can determine how impaired someone is when they’ve consumed marijuana.

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Drivers Under 21 Could Lose License for a Year for Marijuana DUI

Monday, February 26th, 2018

A new California bill could see drivers under the age of 21 lose their driver’s license for a year if they are caught behind the wheel with marijuana in their system.

State Senator Jerry Hill (D-San Mateo), who has been behind several DUI-related bills, proposed the law so that the state would have the same “zero tolerance” policy for marijuana as it does for alcohol when the driver is under the age of 21.

California’s current “zero tolerance” law, under Vehicle Code section 23136, prohibits drivers under the age of 21 from having any alcohol in their systems. If a driver under the age of 21 tests positive for any alcohol in their system, their driver’s license will be suspended for one year through the DMV, but the matter is not considered criminal. Drivers under the age of 21 who have a blood alcohol content of 0.05 percent or higher, however, can be charged with Vehicle Code section 23140 which is an infraction with a $100 fine, a possible alcohol education class, and the one-year suspension through the DMV. Lastly, a driver under the age of 21 can also be charged with the standard DUI charges under Vehicle Code section 23152 that adults face when they are driving under the influence.

“This bill will save lives by making it illegal for drivers under age 21 to drive under the influence of marijuana, just like current law for alcohol,” Hill said in a statement.

It should be made clear, notwithstanding Hill’s statement, that the law would target the presence of marijuana in the driver’s system, not whether the underage driver was “under the influence” of marijuana.

Currently, there is no reliable way to determine exactly how intoxicated or under the influence someone is as a result of marijuana ingestion even though the psychoactive component of marijuana (delta-9-tetrahydrocannabinol or “THC”) might be present in a person system. A person could have smoked marijuana weeks ago and, while the intoxicating effects have long since passed, the THC may still be detectable in the person’s blood.

Hill foresees law enforcement officers being able to use oral swabs to determine if marijuana has been consumed recently. Although, local law enforcement has experimented with such devices recently, the LA Times reported that no such product has yet been approved for use by California law enforcement agencies.

“We don’t have a device in the field to measure impairment of cannabis,” Richard Desmond, an assistant chief for the California Highway Patrol, told legislators this week.

“[The bill] will do nothing to make the roads safer, nor to reduce youth drug abuse,” Dale Gieringer, director of California NORML (National Organization for the Reform of Marijuana Laws), told the San Francisco Chronicle. “What it will do is encourage cops to conduct random screenings of young drivers without any evidence of dangerous driving and grab their licenses for no good reason.”

Although the proposed law requires that law enforcement have reasonable suspicion that the driver might have marijuana in their system before they forcibly test them, I would not put it past some (maybe many) law enforcement officers to fabricate the reasonable suspicion so that they can conduct random screenings as Gieringer suggests.

Fortunately, the bill provides an exemption for drivers under 21 who use medical marijuana if the officer determines that they are not impaired.

 

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Recreational Marijuana Laws and the California DUI

Sunday, January 7th, 2018

As predicted, California passed Proposition 64, otherwise known as The Adult Use of Marijuana Act, on November 8th 2016. This made it legal for people to possess and use marijuana recreationally in California. However, it wasn’t until January 1st of this year that recreational marijuana could be sold to consumers.  

So what does this mean for marijuana laws in California, including marijuana DUI laws?

Well, let’s start with the laws that aren’t related to a DUI of marijuana. Adults over the age of 21 can purchase and possess up to one ounce of marijuana and can grow up to six plants per household out of public view. People under the age of 18 can only purchase marijuana if they have their medical license.

Those who are able to possess marijuana cannot consume in public, even in areas where it is legal to smoke cigarettes. Some cities plan on allowing consumptions of marijuana at designated lounges. However, until then, smoking in public places can lead to fine of $100 to $250.

Just like alcohol, drivers cannot consume marijuana while driving. And any marijuana that is being transported in a car, must be in a sealed container in the trunk.

While marijuana laws have changed in many other respects, it is still illegal to drive while under the influence of marijuana.

California Vehicle Code section 23152(e) makes it illegal to drive a vehicle while under the influence of drugs including marijuana. Unlike California’s DUI of alcohol law, there is no legal limit for marijuana, or more specifically, tetrahydrocannabinol (THC) the psychoactive component of marijuana. Therefore, a person can only be arrested and convicted of a marijuana DUI if the ingestion of marijuana impairs a person’s ability to drive a vehicle as a sober person would under similar circumstances.

To prove that a person is driving under the influence of marijuana, a prosecutor can use officer observations of driving patterns, observations during the traffic stop, performance on field sobriety tests, and the presence of THC in any blood test done.

Since “under the influence” is an extremely subjective standard, it is often very difficult to prosecute DUI of marijuana cases. This is especially true if the driver refused to perform the field sobriety tests and/or the officer did not observe driving that would be indicative of someone who is under the influence of marijuana.

Law makers could seek some sort of per se limit for how much THC can be in a person’s blood while driving. Several states have set a per se limit of five nanograms of THC per milliliter of blood. Colorado, has set a five nanogram per milliliter of blood limit to allow for the presumption that a person is “under the influence.” Unfortunately, current per se limits for THC, are an inaccurate measure of how impaired a person is.

Unlike alcohol, THC is fat soluble and remains in a user’s system long after they have ingested the marijuana, sometimes by several weeks. This creates the possibility of being arrested with five nanograms of THC in the system weeks after a person has smoked marijuana and well after the “high” is gone. Yet, because the THC is present, a person can either be arrested or, in Colorado, presumed to be under the influence.

As tech companies are scrambling to be the first to develop a device that will allow law enforcement to test “how high someone is,” Assemblyman, Tom Lackey, who is a former sergeant with the California Highway Patrol, has introduced Assembly Bill 6 which would allow tests using saliva samples taken from drivers suspected of driving under the influence. The test would let the officer know whether a driver has recently used a number of drugs including marijuana.

“The ballot initiative passed [in 2016] to legalize marijuana will result in more marijuana consumers on our state’s highways and roads,” Lackey said in a statement. “It is imperative that we invest in a broad spectrum of technologies and research to best identify marijuana-impaired drivers.”

There is an established correlation between blood alcohol content, specifically the legal limit of 0.08 percent, and alcohol impairment. Unlike alcohol, however, there is no such correlation between the presence of drugs and impairment. In other words, a person can have traces of drug in their system without being impaired by that drug.

Marijuana, for example, can stay in a person’s system for weeks following the smoking or ingesting of the marijuana and well after the person was intoxicated or stoned. The purpose of DUI laws is to prevent impaired driving, not to punish sober and unintoxicated people merely because they ingested drugs at some point in the past.

Until we can establish a correlation with drugs including marijuana like we have with alcohol, namely the correlation between quantity and impairment, we shouldn’t be using pushing for laws like this.

Assembly Bill 6 will be brought up for a vote early this year.

Since it is perfectly legal to consume marijuana and have THC in your system, it is important to protect yourself from unwarranted DUI of marijuana charges. Do not say anything to the police. The 5th Amendment exists for a reason; use it. Politely refuse any field sobriety tests. Lastly, remember that you must submit to a chemical test after you have been arrested.

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San Diego Begins Using Mouth Swabs to Detect Drugged Drivers

Thursday, March 23rd, 2017

I’ve been writing for some time now that roadside drug tests for suspected DUI of drugs stops are not far off. The increase in drug usage and the growing acceptance of marijuana has law enforcement agencies and law makers clamoring for a device that can quickly and accurately test whether drivers are under the influence of drugs. While current devices are not quite yet capable of telling law enforcement how intoxicated a driver might be, they can say whether a driver has drugs in their system. And San Diego became the latest city to use such devices roadside.

Last week, San Diego police began using roadside oral swabs to test drivers for the presence of marijuana, cocaine, methamphetamine, amphetamine, methadone, opiates, and benzodiazepines. The oral swabs cannot, however, test the amount of drugs in the driver’s system nor can it test for the driver’s level of intoxication.

The inability to test for quantity of drug or intoxication is legally important because, under California law, a person can only be arrested, charged, and convicted of a California DUI if they are “under the influence of a drug.” This means that a person’s physical or mental disabilities are impaired to such a degree that they no longer have the ability to drive with the caution characteristic or a sober person of ordinary prudence under the same or similar circumstances.

With the swab test only able to indicate the presence of one of the drugs listed above, a prosecutor must still prove that a person was not driving with the care of that of a sober person. This is done with officer testimony of poor driving patterns, failure of field sobriety tests, and visual symptoms of drug impairment.

Although many, including Mothers Against Drunk Driving, often forget, the mere presence of drugs in a driver’s system does not necessarily mean that they are driving under the influence. Tetrahydrocannabinol (THC), the active component in marijuana, for example, can stay in a person’s system for up to several weeks after the smoking or ingestion of marijuana. While, the THC may still be present, the person may no longer be “under the influence.”

San Diego began using the oral swab test, called Dräger 5000, after officials met with authorities in Colorado which legalized recreational marijuana in 2014.

Under San Diego protocol, law enforcement will only request the oral swab after they suspect that the driver might be under the influence of a drug. And before that, the officer must have probable cause to even stop the driver in the first place.

Like the preliminary screening alcohol test (PAS) test in DUI of alcohol cases, the oral swab test is also optional. And like the PAS test, it is never suggested that a driver voluntarily submit to the test. Never give law enforcement and prosecutors any more information than they already have.

Only after a person is arrested must they submit to a chemical test and if law enforcement suspects that a person was driving under the influence of a drug, they’ll have to take a blood test.

According to a study by the California Office of Traffic Safety, 38 percent of drivers killed in vehicle collisions during 2014 tested positive for either legal or illegal drugs. This is up six percent from 2013. While this may seem like a high number, testing positive does not necessarily mean that those drivers were actually under the influence and impaired by a drug.

Although drugged driving is and will always be a problem, we can’t continue to arrest people for driving for the mere presence of drugs in their system because presence does not mean impairment.

 

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Lawmakers Seek to Create Drugged Driving Task Force

Friday, March 3rd, 2017

With the legalization of recreational marijuana in California, lawmakers are pushing efforts to pass new legislation regarding marijuana, particularly when it comes driving after marijuana use. Tom Lackey (R-Palmdale), who is no stranger to introducing anti-DUI laws in California, has introduced a bill that would create a drugged driving taskforce under the supervision of the Commissioner of the California Highway Patrol.

“The bill, AB-6, is a reasonable approach forward to address our fight against drugged driving,” Lackey told the Los Angeles Times. “The urgency of this should be very clear to all of us.”

The bill, which was proposed by the California Police Chiefs Association and introduced by Lackey, if approved, would add a completely new section to the current California Vehicle Code.

The Legislative Counsel’s Digest for the bill says the following:

“This bill would require the commissioner to appoint, and serve as the chair of, a drugged driving task force, with specified membership, to develop recommendations for best practices, protocols, proposed legislation, and other policies that will address the issue of driving under the influence of drugs, including prescription drugs. The bill would also require the task force to examine the use of technology, including field testing technologies, to identify drivers under the influence of drugs, and would authorize the task force to conduct pilot programs using those technologies. The bill would require the task force to report to the Legislature its policy recommendations and the steps that state agencies are taking regarding drugged driving.”

The task force would include representatives from local law enforcement, prosecutors, various representatives from the marijuana industry, representatives from the pharmaceutical industry, representatives from the Office of Traffic Safety, representatives from the National Highway Traffic Safety Association, and licensed physicians.

The Assembly Public Safety Committee unanimously recommended the bill after a hearing in which Karen Smith, a teacher from Antelope Valley, provided emotional testimony about how her husband had been killed a driver who was under the influence of marijuana.

“He was just 56 years old. We had been married for 34 years,” said Smith. “It was all wiped out in just one second by a person who chose to drive under the influence of THC.”

There’s no question that marijuana affects driving ability. Exactly how and to what degree, is up for debate. What is certain however, is that there is a very important difference between being under the influence of marijuana and having THC in your system, and the task force, if AB-6 passes, had better understand the difference.

It is well known that the “per se” limit for how much alcohol can be in a person’s system is 0.08 percent blood alcohol content. With alcohol, there is a fairly strong correlation between blood alcohol content and intoxication. In other words, there is a high probability that a person with a 0.08 blood alcohol content is feeling the effects of alcohol intoxication such that they cannot operate a vehicle as a reasonable and sober person would.

The same cannot be said about the intoxicating effects of marijuana use and the amount of THC in a person’s blood. Unlike alcohol, THC is fat soluble which means that it leaves the body at a much slower rate. In fact, chronic users of marijuana can have THC in their blood weeks after use. Therefore, someone who has smoked marijuana three weeks ago can still be arrested in states with a “per se” THC limit even though they are no longer under the influence of marijuana and perfectly sober.

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