Author Archives: Lawrence Taylor

State Supreme Court: “No Reliable Scientific Test for Marijuana Impairment”

It is, of course, illegal to drive a vehicle while impaired by the effects of marijuana.  The continuing problem, however, is:  How do you prove that a driver is, in fact, under the influence of marijuana?

Law enforcement currently relies primarily upon the opinions of police officers as to whether a suspect is unable to safely operate a vehicle due to marijuana impairment.  The primary tool used to arrive at this opinion is the same as for alcohol impairment: field sobriety tests.  These highly subjective roadside "tests", administered and interpreted by a police officer with little training, is coming under increasing scrutiny — as reflected in yesterday’s decision by the Massachusetts Supreme Court:
 

Court: Roadside Drunken Driving Tests Not Valid for Pot

Boston, MA.  Sept 19 – The highest court in Massachusetts has ruled that field sobriety tests typically used in drunken driving cases cannot be used as conclusive evidence that a motorist was operating under the influence of marijuana.

The Supreme Judicial Court on Tuesday said police officers could testify only to their observations about how a person performed during a roadside test.

But they would not be allowed to testify as to whether a person passed or failed such a test or offer their own opinions about whether a driver was too high to drive.

The justices said there is currently no reliable scientific test for marijuana impairment.

Adult use of recreational marijuana is now legal in Massachusetts, though the court noted it’s still illegal to drive while high on pot.


Absent evidence of impairment based upon field sobriety tests, the only other evidence (independent of a police officer’s subjective opinion), is a blood test.  This, however, has been proven to be highly unreliable.  See, for example, Can DUI Marijuana Be Detected or Measured?, How Much Marijuana Does It Take to Impair Driving? and New Study: Minimal Impairment from Marijuana.

(Thanks to Joe)

 

Can DUI Marijuana Be Detected?

I’ve posted in the past on the difficulties law enforcement faces in detecting impairment from marijuana while driving — both subjectively (symptoms, field sobriety tests and the officer’s opinion) and objectively (analysis of blood or other bodily substances).  See, for example, Identifying and Proving DUI Marijuana ("Stoned Driving"), Can Breathalyzers Measure Marijuana?New Efforts to Push Roadside DUI Marijuana Test and San Diego Begins Using Mouth Swabs to Detect Drugged Drivers. There is even disagreement among scientists as to how much marijuana must be ingested to become impaired, and how the metabolism (absorption and elimination) of marijuana functions in any individual — for example, how long the active metabolites remain in the blood. See How Much Does It Take to Impair Driving? and New Study: Minimal Impairment From Marijuana.

The following excerpts from a segment of a recent public radio presentation does an excellent job of laying out the difficulties in detecting marijuana impairment and measuring levels of active THC (delta-9-tetrahydrocannabinol) in the blood.  


Scientists Still Seek a Reliable DUI Test for Marijuana

July 30, 2017.  NPR  – Despite the increasingly legal use of cannabis in many states, cops still don’t have the equivalent of a reliable alcohol breathalyzer or blood test — a chemically based way of estimating what the drug is doing in the brain. Though a blood test exists that can detect some of marijuana’s components, there is no widely accepted, standardized amount in the breath or blood that gives police or courts or anyone else a good sense of who is impaired…

A number of scientists nationally are working hard to create just such a chemical test and standard — something to replace the behavioral indicators that cops have to base their judgments on now…

Turns out it can be a lot harder to chemically determine from a blood or breath test that someone is high than to determine from such a test that they’re drunk.

Ethanol, the chemical in alcoholic drinks that dulls thinking and reflexes is small and dissolves in water. Because humans are mostly water, it gets distributed fairly quickly and easily throughout the body and is usually cleared within a matter of hours. But THC, the main chemical in cannabis that produces some of the same symptoms, dissolves in fat. That means the length of time it lingers in the body can differ from person to person even more than alcohol — influenced by things like gender, amount of body fat, frequency of use, and the method and type of cannabis product consumed.

In one study, researchers had 30 frequent marijuana users stay at a research facility for a month without any access to drugs of any sort and repeatedly tested their blood for evidence of cannabis.

"And it shocked everyone, including ourselves, that we could measure, in some of these individuals, THC in the blood for 30 days," says Marilyn Huestis, a toxicologist with the University of Maryland School of Medicine who recently retired from leading a lab at the National Institute on Drug Abuse.

The participants’ bodies had built up stores of THC that were continuing to slowly leech out, even though they had abstained from using marijuana for a full month. In some of those who regularly smoked large amounts of pot, researchers could measure blood THC above the 5-nanogram level for several days after they had stopped smoking.

Conversely, another study showed that people who weren’t regular consumers could smoke a joint right in front of researchers and yet show no evidence of cannabis in their blood.

So, in addition to being invasive and cumbersome, the blood test can be misleading and a poor indicator of whatever is happening in the brain…


The NPR segment went on to discuss the difficulties police officers have in judging whether a person who has consumed marijuana was impaired.  After law enforcement training seminars involving volunteers who had smoked different amounts of marijuana, the program concluded:


Right now, these officer’s opinions loom large. If they decide you’re driving high, you’re going to jail. But at the end of the day, they’re just making educated guesses. Two different officers could watch the same person doing the same sobriety test and make different decisions on whether to arrest. In previous courses, officers had decided that a volunteer was impaired when in fact the volunteer hadn’t smoked at all.   

So, just like the THC blood test, the judgments officers make can also yield false positives and negatives….


An increasing number of states are simply throwing up their hands and, in effect, deciding that actual impairment is not necessary: the crime is in driving with an arbitrary amount of THC in the blood — even if there is no actual impairment at all.  

This follows what the federal government imposed on the states a few years ago: a new crime of driving with 0.08% blood-alcohol, to overcome the difficulties of having to prove the driver was actually impaired — despite the proven fact that many people are not impaired at that level or higher.  In alcohol cases, however, it is at least possible to measure alcohol levels, and roughly determine absorption and elimination times.

But changing the crime of driving while impaired by marijuana to one of having an arbitrary amount in the system makes arrest and conviction much easier for police and prosecutors, right?  And isn’t that the important thing?
 

Driving Drunk….in Your Own Driveway?

In the latest news from the front lines of the "War on Drunk Driving"….


Suspected Drunken Driver Can Be Busted in Own Driveway 

Detroit, MI.  July 25 – The Michigan Supreme Court says a driveway is no refuge for a drunken driver.

The court says Northville authorities could charge Gino Rea with drunken driving, even if his car never left the driveway. The court says a driveway is “generally accessible to motor vehicles” under state law, even if on private property.

Police went to Rea’s home three times one day in 2014 to respond to noise complaints. At one point, an officer saw him drive out of the garage and pull back in. His blood-alcohol level was three times the legal limit.


The next thing you know they’ll be arresting people for DUI on bicycles and wheelchairs.  Oh, right, they’re already doing that.  See, for example, Felony Bicycle DUI and DUI in a Wheelchair
 

DUI-E is here

Jon Ibanez and I have posted in the past about the dangers of "distracted driving" — that is, driving while using a cell phone, reading a map, putting on makeup, etc.  See, for example, Jon’s recent post Is Distracted Driving as Dangerous as Drunk Driving?.  And over 12 years ago I commented in Drunk Drivers vs Distracted Drivers on a wide range of research concerning the relative dangers of using cell phones while driving, such as:


A detailed study on the effects of cell phone use on driving was conducted by researchers at the University of Utah, and reported in a paper entitled Fatal Distraction? A Comparison of the Cell-Phone Driver and the Drunk Driver given at the Second International Driving Symposium on Human Factors in Driving Assessment, Training and Design (July 2003). Using a simulator, the researchers measured how subjects reacted to vehicles braking in front of them…The conclusion of the researchers: Drivers on cell phones showed greater impairment, less responsive behavior and more accidents than drunk drivers. 


Yet, our legislators’ continuing fixation with alcohol — largely fueled by MADD’s political influence — has resulted in ignoring the ultimate goal of saving human life. 

This appears to finally be changing….


Washington’s New DUI-E Law Takes Effect Sunday

Spokane, WA.  July 18 – ….The DUI-E law, for driving under the influence of electronics, outlaws holding a cell phone at any time while driving, unless you’re calling 9-1-1 in an emergency. The law even prohibits picking up the phone at stoplights.  The first ticket for an DUI-E will cost you $136. Get a second ticket within five years, and it’ll cost $234. The new law also tickets drivers $99 for grooming, smoking, eating or reading while behind the wheel. (Governor) Inslee says that in many cases a distracted driver is more dangerous than a drunk driver.

"When you are driving with a cell phone, you are a more dangerous driver than if you’re driving drunk with a .08 alcohol level," said Governor Inslee. He continued by saying this is a situation we deal with on a daily basis.


While this is encouraging, the news article continues with an observation by law enforcement that highlights the drunk vs distracted double standard:
 

Spokane County Sheriff’s deputy Craig Chamberlain says the new law isn’t meant to punish people.  "The bottom line with the new changes in this law is that we want folks to be safe on the roadway."


So…the new distracted driving laws aren’t meant to punish people — only to make the roads safe?  Then why do our drunk driving laws continue to be focused on punishment — of admittedly "less dangerous" drivers?  
   

(Thanks to Joe.)
 

Is a New .05% Law Coming to Your State?

On January 15th of last year, the National Highway Traffic Safety Board (NHTSA) issued the following news release:


Feds Want to Lower the Legal Limit to One Drink

Washington, DC. Jan. 15 – The National Transportation Safety Board wants to decrease the legal driving limit to one drink, lowering the legal limit on blood-alcohol content to 0.05 “or even lower.”…

The agency issued the recommendation while admitting that “the amount consumed and crash risk is not well understood.”

“We need more and better data to understand the scope of the problem and the effectiveness of countermeasures,” they said….

A 0.05 BAC level would reduce the number of drinks an average-weight man of 180 pounds could have to two, according to Blood Alcohol Calculator. Women could only have one drink before they exceeded the limit. A 100-pound woman reaches .05 BAC with just one drink, but two drinks would put any woman under 220 pounds at or above the government’s desired limit.

Under the current level of 0.08, an average weight man can have four drinks until reaching the limit.


On the next day, I posted the following on this blog:


To give all of this some context, let me offer a history of this focus on the lowering of blood-alcohol limits rather than on the more important issue of alcohol-caused impairment….

The original drunk driving laws were simple and fair: Don’t drive under the influence of alcohol (DUI). Then, many years ago, law enforcement came up with crude devices to measure alcohol on the breath of drunk driving suspects. But what did, say, a .13% blood-alcohol concentration (BAC) mean? They turned to the American Medical Association which, in 1938, created a "Committee to Study Problems of Motor Vehicle Accidents". At the same time, the National Safety Council set up a "Committee on Tests for Intoxication".

After some study, these two groups came up with their findings: a driver with .15% BAC or higher could be presumed to be "under the influence"; those under .15% could not. That’s right: .15%. And that recommendation lasted for 22 years. But prosecutors and certain groups of "concerned mothers" were not happy with the low DUI arrest and conviction rates.

Under increasing political pressure, the committees "revisited" the question in 1960 and agreed to lower the presumed level of intoxication to .10%. Had the human body changed in 22 years? Had the AMA been negligent in their earlier studies? Or were politics and law once again trumping scientific truth?

Well, the arrest and conviction rates shot up, but there were still too many people escaping the DUI net. Then MADD was formed. Soon after, legislation began appearing in many states that created a second crime, in addition to driving under the influence: driving with a BAC of .10% or higher.

This new crime did not require the driver to be affected by alcohol: even if sober, he would be guilty if his blood-alcohol was .10%. In effect, it completely ignored the questions of intoxication, driving impairment and individual tolerance to alcohol. And, despite questions of double jeopardy, the individual could be charged and even convicted of both the traditional DUI and the new .10% crimes! This gave police and prosecutors a powerful new weapon, and drunk driving arrests/convictions jumped once again.

This was not good enough. Under increasing pressure from an ever more powerful MADD, in 1990 four states lowered the blood-alcohol level in DUI cases to .08%; others soon followed and, ten years later, federal politicians (with one eye on MADD) passed an appropriations bill in effect coercing all states into adopting the new .08% BAC standard.


Since I wrote this, three months ago Utah enacted a new law lowering the blood-alcohol level drunk driving to .05%. See Jon Ibanez’ DUIblog post Utah Lawmakers Vote to Lower State’s BAC Limit to 0.05%.

Interestingly, on June 17th — shortly after the new .05% law was enacted — the Salt Lake City Tribune published the following comments from the original founder of MADD, Candy Lightner:


Founder of MADD Says Utah’s New Drunk Driving Law is an Unhealthy Distraction

Salt Lake City, Ut.  June 17 – While drunk driving remains a serious concern, other threats are mounting on our roadways. According to a recent report from the Governors Highway Safety Association and the Foundation for Advancing Alcohol Responsibility, 43 percent of drivers involved in fatal crashes tested positive for some sort of drug, legal or illegal. And with the rise of smartphones and other gadgets, people are distracted more than ever while driving.

As the founder of Mothers Against Drunk Driving (MADD) I can attest that there is a new kind of madness on the roads. And new approaches are needed to save lives.

Unfortunately, the necessary debate on how to solve these new challenges isn’t happening in earnest. The traffic safety community is distracted by an issue that will do little to save lives: lowering the drunk driving arrest threshold from .08 to .05.

Back in the early years at MADD we focused on getting serious drunk drivers off the road…In the more than 35 years since MADD’s founding, we have fought drunk driving ferociously and saved countless lives in the process.

But today, the pendulum has swung too far in the other direction — with government agencies pushing states to arrest people for having little to drink before driving instead of pursuing strategies to tackle serious distraction and impairment. Anyone who works in traffic safety knows that most highway deaths are not caused by drivers with low blood alcohol content levels, but are the result of drivers with substance abuse disorders. Focusing finite resources on casual drinkers instead of drug and alcohol abusers is a miscalculation with deadly consequences…

 
Maybe it’s time for the decades-old "War on Drunk Driving" to redirect its fixation away from alcohol and towards the real problem today:  drugs and distracted driving….