How Much Marijuana Does It Take to Impair Driving?

Posted by Lawrence Taylor on February 20th, 2017

A number of posts on this blog have addressed the problems encountered in trying to measure levels of marijuana — or, more accurately the active ingredient Tetrahydrocannabinol ("THC") — in the blood of a person when he was driving.  See, for example, Oregon Legislative Study Criticizes "Per Se" DUI Marijuana Laws and Marijuana Legalization and the California DUI.   

More importantly, these and other posts have also raised the related but unanswered question:  How much marijuana in the human body does it take to render a driver unable to safely operate a motor vehicle in the manner of a sober person (the rough definition of "driving under the influence" or "driving while intoxicated")?  See New Efforts to Push Roadside Marijuana DUI Test

The following excerpts from a recent article in The Atlantic, entitled "When Are You Too Stoned To Drive?", provide an excellent analysis of these important issues: 


…We take for granted that not being able to walk a straight line or stand on one leg means that you’re drunk, and that being drunk means it’s unacceptably dangerous to drive. But there is no clear scientific consensus when it comes to smoking pot and driving. And few of the tools police officers have long relied on to determine whether a driver is too drunk to drive, like a breathalyzer, exist for marijuana…

Most (but not all) studies find that using pot impairs one’s ability to drive. However, overall, the impairment appears to be modest—akin to driving with a blood alcohol level of between .01 and .05, which is legal in all states. (The much greater risk is in combining pot with alcohol.) The increased crash risk with pot alone “is so small you can compare it to driving in darkness compared to driving in daylight,” says University of Oslo political scientist Rune Elvik, who conducted several major meta-analyses evaluating the risk of drugged driving…

When it comes to alcohol, science and the courts have long established a direct line between number of drinks, blood alcohol level, and crash risk. As one goes up, so do the others. Not so for pot. Scientists can’t say with confidence how much pot, in what concentration, used in what period of time, will reliably make someone “high.”…

Blood levels of THC—tetrahydrocannabinol, the chemical component of pot that makes you high—spike quickly after smoking and then decline rapidly in the hours afterwards, during the window when a smoker would feel most high. What’s more, regular smokers could have THC in their blood for days or weeks after smoking, when they are clearly no longer high.

Still, laws in 18 states tie drugged driving charges to whether drivers have THC (or related compounds) in their blood. Some states prohibit driving with any amount, and some specify a threshold modeled after the .08 limit states use for blood alcohol. But the lag time between being pulled over and being transported to a hospital for a blood draw—on average, more than two hours—can lead to false negatives, while the tolerance developed by regular users (and the tendency for THC to stick around in their bloodstreams) can lead to false positives. This is why, researchers say, blood THC laws make little sense… 


Scientific facts, however, have never prevented politicians from passing expedient and politically-popular laws, or police and prosecutors from enforcing them. 
 

Rare Disorder Causes DUI without Drinking

Posted by Jon Ibanez on February 10th, 2017

A woman, who requested to be called Sara to maintain confidentiality and protect her legal career, was arrested in 2015 for driving under the influence when she collided with a parked vehicle. It was later determined that she had a blood alcohol content of 0.10 percent. Sara had been arrested for DUI before back when she was an admitted alcoholic. This time, however, was different. Sara, now a recovering alcoholic for nearly ten years, only drank orange juice.

Sara drank orange juice and lots of it, sometimes up to a gallon per day. That orange juice, however, might as well have been alcohol for Sara.

Sara suffers from auto-brewery syndrome. Yes, that is an actual medical condition albeit an extremely rare one. Auto-brewery syndrome causes a person’s body to produce extremely high levels of yeast in the digestive track. If you know anything about how beer is made, you’ll know that yeast eats the sugar that is extracted from boiling grains and then releases carbon dioxide and alcohol. See where I’m going? The yeast in Sara’s system ate the sugars from the orange juice and produced alcohol in Sara causing her to be intoxicated without having a sip of alcohol.

Shortly after she was diagnosed last July, Sara accepted a plea deal for a reduced charge of reckless driving with probation.

Sara estimates that she spent $25,000 fighting the drunk driving charge, with expenses including attorney fees and a privately commissioned polygraph test. She says she chose to take a deal rather than go to trial because a conviction could have been career-ending.

“As soon as I stopped the orange juice, I was fine,” said Sara. “I don’t even tell anyone [about the disorder] because you can almost see them rolling their eyes.”

In 2014, a New York judge dismissed the DUI charge of a woman who was pulled over after a motorist noticed her driving poorly. After police arrived, it was determined that the woman had a whopping 0.33 percent blood alcohol content.

Another characteristic of the disorder is an unusually high tolerance to the alcohol in their system.

The woman’s lawyer hired two physician assistants and a breathalyzer specialist to evaluate the woman over a 12-hour period. They found that the woman’s BAC was double the legal limit at 9:15 AM. At 6 PM, it was triple, and at 8:30 PM, it was four times higher. This was around the same time when the police pulled the woman over for DUI. In other words, her body was producing alcohol consistently throughout the day. Oddly, however, the woman did not exhibit any signs of intoxication until her blood alcohol content reach between 0.30 and 0.40 percent where she would feel dizzy.

Normal people with a blood alcohol content that high are usually unconscious at a minimum, some would be suffering from alcohol poisoning.

“My client does suffer from an extremely unusual condition, and we conducted very extensive medical research and presented our findings to the judge,” said the woman’s defense attorney, Joseph A. Marusak. “To my knowledge, this is the first time a DWI case has ever been dismissed on this basis in New York State, and as far as I can tell, it may be the first time in the country.”

When Does a California DUI Become a Felony?

Posted by Jon Ibanez on February 3rd, 2017

Generally, when a person is arrested on suspicion of driving under the influence in California, it is a misdemeanor charge. Misdemeanors are punishable by no more than a year in jail. Sometimes, however, a California DUI can be charged as a felony, meaning that it can be punishable by more than a year in jail.

So when does a California DUI become a felony?

The first way that a California DUI can become a felony is if a drunk driver causes death or injury. California Vehicle Code section 23153 makes it unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, or with a blood alcohol content of 0.08 percent or higher to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.

A California DUI causing injury is known as a “wobbler.” This means that it can be charged as either a misdemeanor or a felony. Whether a prosecutor charges a violation of California Vehicle Code section 23153 as a misdemeanor or a felony depends on several considerations such as the level of intoxication, the seriousness of the injury, the defendant’s prior criminal history, and any other aggravating factors.

If a drunk driver causes the death of someone and the drunk driver has not suffered any prior DUI convictions, the defendant will more likely be charged with vehicular manslaughter while intoxicated or gross vehicular manslaughter while intoxicated under the California Penal Code.

However, if a DUI results in a death and the defendant has suffered a prior DUI conviction within ten years, they can and most likely will be charged with second degree murder. This is known as the “Watson Murder Rule.” In short, the court’s view is that, because the person suffered prior convictions, they knew it was dangerous, yet they did it anyways knowing the risk to life.

The second way that a California DUI can be a felony is when a person has suffered three prior DUI convictions within the past ten years. Priorable DUI charges include driving under the influence (California Vehicle Code section 23152), driving under the influence with injury (California Vehicle Code section 23153), wet-reckless (California Vehicle Code section 23103.5), and out-of-state convictions that qualify as a priorable conviction. Out-of-state DUI convictions qualify as a prior DUI if they would be considered a DUI had the arrest occurred in California.

To prove priorable convictions the prosecutor may use court records from the prior cases as well as Department of Motor Vehicle records. The prosecutor may also use “expunged” (California Penal Code section 1203.4 dismissal) priors in enhancing a DUI charge if the conviction occurred within the 10-year period.

Lastly, a California DUI can become a felony if a person suffered a prior felony DUI within ten years. The priorable felony offense can be a conviction of California Vehicle Code section 23152 (fourth or more DUI), California Vehicle Code section 23153 (DUI causing death or injury), California Penal Code section 192 (vehicular manslaughter), or California Penal Code section 191.5 (vehicular manslaughter while intoxicated or gross vehicular manslaughter while intoxicated).

Oregon Legislative Study Criticizes “Per Se” DUI Marijuana Laws

Posted by Lawrence Taylor on January 31st, 2017

As I’ve posted often in the recent past, with the increasing use — and legalization — of marijuana, legislators and law enforcement are falling over themselves trying to come up with answers to many uncomfortable questions, such as:


Does marijuana, in fact, impair driving ability?

How does an officer detect recent use of marijuana in the field? 

How do you measure the amount of active marijuana (THC) in the body at the time of driving?

At what level of active ingredients in the body is a person impaired? 

How long do measurable amounts of marijuana stay in the body?

If impairment levels cannot be determined, is there an illegal per se level that can be used, such as .08% with alcohol? 


And as I’ve posted in the past, there are no accepted satisfactory answers to these and related questions.  See, for example, California Law Attempts to Prevent Marijuana Use While Driving, Is it Possible to Prove "Driving Under the Influence of Drugs? and Legal Defenses to a California DUI of Marijuana.  

Unlike with alcohol, the various states have taken a variety of different approaches to criminalizing marijuana and driving.  See What Are Your State’s Drugged Driving Laws?   One recent and growing approach is to simply create so-called "per se" laws which criminalize driving with specific levels of THC in the blood, regardless of impairment.  This was recently considered by the Oregon Legislature, resulting in the following Oregon House Bill Legislative Report, excerpts of which follow:


Salem, OR.  Dec. 31 —  …While Colorado and Washington, the first states to legalize recreational marijuana, instituted a per se THC blood concentration limit of 5 ng/ml, Oregon did not. Instead, Oregon relies on evaluations by Drug Recognition Experts (DRE) to assess drivers for intoxication if they have already passed a breathalyzer test (i.e. have blood alcohol content below 0.08)….

Differences in how the body processes marijuana as compared to alcohol makes accurate detection of THC concentration and its intoxicating effect significantly more difficult. It is especially difficult to detect recent use of marijuana in the field… 

Due to restrictions on cannabis research and limited data, it is difficult to make definitive statements about the risk of THC-intoxicated driving. The body of evidence that does exist indicates that while attitudes towards driving after marijuana use are considerably more relaxed than in the case of alcohol, the risk of crashes while driving under the influence of THC is lower than drunk driving. Little evidence exists to compel a significant change in status quo policy or institute a per se intoxication standard for THC.


While the confusion, floundering and passage of inconsistent laws continue, so do the arrests and convictions of innocent drivers. 
 

Company Behind Personal Breathalyzer Settles Dispute with FTC

Posted by Jon Ibanez on January 26th, 2017

I’ve never hidden my belief that if a personal breathalyzer can prevent a DUI, it should be used. That being said, it seems the company behind one of the most popular personal breathalyzers on the market has settled with the Federal Trade Commission (FTC) over false claims of its accuracy.

On the fifth season of ABC’s hit show “Shark Tank,” CEO and founder of Breathometer Inc., Charles Michael Yim, won over the “shark” investors with an invention called the “Breathometer” that allowed users to a detect their own blood alcohol content through their smart phone. The device attached to smartphone, would be blown into by the user, and the smartphone would calculate the BAC through an app. Yim’s pitch included the prospect that the Breathometer could prevent incidences of driving under the influence of alcohol.  The investors were so impressed with Yim’s invention that they offered up a $1 million dollar investment in exchange for a 30% stake in his startup.

The Breathometer became a consumer hit partly due to advertisements which claimed that the devices accuracy was backed up by government-lab grade testing. According to the FTC, sales for the Breathometer totaled $5.1 million.

However, more than three years after the episode aired, the FTC announced that Yim and Breathometer Inc. had settled a claim that the device “lacked scientific evidence to back up their advertising claims.” The complaint also alleged that the company knew that one variation of the Breathometer, the Breeze, “regularly understated” blood alcohol content levels.

While Yim and Breathometer Inc. did, in fact, settle with the FTC, they did not admit or deny the FTC’s allegations.

Under the settlement with the FTC, Yim and Breathometer Inc. are barred from making claims of the device’s accuracy unless the claims are supported through “rigorous testing.” The company also agreed to notify purchasers of the product to offer full refunds.

“People relied on the defendant’s products to decide whether it was safe to get behind the wheel,” Jessica Rich, director of the FTC’s Bureau of Consumer Protection, said in a statement. “Overstating the accuracy of the devices was deceptive — and dangerous.”

Breathometer recognized the settlement on its website by stating, “We feel it is important to clarify that this settlement does not undermine our achievements in creating quality consumer health devices.”

Kevin O’Leary, one of the Shark Tank investors, responded to the settlement by stating that the company proactively stopped the manufacturing of the Breathometer in 2015 before the FTC’s initial inquiry.

I stand by my assertion that a personal breathalyzer is a good way to prevent a DUI. Just do some research beforehand on the reliability of what you purchase. According to digitaltrends.com, the best personal breathalyzer for 2016 was the BACtrack S80 Professional Breathalyzer which will run you $125. According to the website, the best smartphone breathalyzer was the BACtrack Mobile Smartphone Breathalyzer at $98, the best portable breathalyzer was the BACtrack Keychain Breathalyzer Portable starting at $26, and the best budget breathalyzer was the VastarAB120 Professional at $20.

Better to spend $125 (at most) to prevent a DUI than to spend the thousands of dollars it will cost you if you are arrested on suspicion of a DUI.