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Is Utah’s Cannabis DUI Law Too Lenient?

Although many states have started to legalize the use of recreational cannabis, some still continue to oppose. We have previously covered the difficulties of how to effectively and accurately measure or even quantify impairment with THC levels (see Marijuana Breath Detector). And yet, there are many who refuse to see the importance in exacting the correlation between THC and impairment, and what it means for drivers who may occasionally partake.

Utah State Representative Steve Waldrip (R- Eden), is one of those people. His plan is to introduce a bill that would presume impairment in DUI cases when one has reached or exceeded a specific level of THC in their blood, and “simply mirror what happens with alcohol.” He feels that it is unfair to treat marijuana intoxication as a lesser offense than in the case of intoxication with alcohol. However, his view seems to ignore the fundamental differences between the two substances. In a previous article, we covered the difference between alcohol which is water soluble and THC (tetrahydrocannabinol) which is fat soluble and how that affects levels found the blood stream, as well as how that affects the determination of impairment. His approach would completely ignore the scientific differences of these two substances and create a double standard in addition to the already unfair legal standard.

Waldrip’s reaction was mainly based on an accident where a driver, who tested positive for THC, hit a pedestrian on a highway and now faces misdemeanor charges. As a misdemeanor, the charge is punishable by up to six months in jail. Waldrip and the victim’s family felt that the penalty for the charge was too lenient.

According to the police report for the accident, the driver, though tested positive for THC, was driving under the speed limit of 50 mph at the time of the accident, stopped quickly, and attempted to aid. Under current Utah law, when a crash results in a serious injury or death, the offense can be charged as a felony. In this case, due to the contents of the police report, prosecutors were not able to prove impairment as the law requires evidence of impairment beyond blood test results. This was also combined with the fact that the pedestrian was found to have been under the influence of alcohol at the time of the crash with a blood alcohol content of 0.21 percent, over four times the legal limit in Utah.

Waldrip’s argument seems to be a double standard in how alcohol and marijuana are treated, and wants to do away with the impairment standard, ignoring the fact that driving with “any measurable controlled substance or metabolite of a controlled substance” in your blood is a Class B misdemeanor. Given that THC metabolizes much slower than alcohol, this current law is already unfairly skewed for cannabis users. He also conveniently ignores the fact that there are other elements of the current law that can convict without evidence of impairment. Misdemeanor DUI convictions may also trigger, upon a first offense, suspension of the driver’s license and mandatory attendance in an education program; for a second offense, minimum jail time or community service increases from two days to 10 days; and a third offense is a felony. All of these can be triggered without additional evidence of impairment. As an article by Reason pointed out, “That is the real double standard.”

Can Colorado Keep Up?

Questions regarding Colorado’s ability to keep up with the flow of DUI blood tests have come to light since the state’s major policy change that could potentially jeopardize cases.

As of July 1, 2019, rather than sending out their blood tests to private labs, the Colorado Bureau of Investigations (CBI) has taken on the workload themselves in their attempt to cut back on spending. Private lab testing costs, at minimum $300, per case. This switch was in attempt to ease financial burdens on the smaller law enforcement agencies and to better collect data regarding marijuana use among motorists. The hope was that the state would be able to gather more information since the smaller agencies who refrained from sending in samples previously due to the cost, would be more likely to send in their data.

In addition to the fear that the CBI will not be able to handle the overflow that would result from the change in policy, there is also concern regarding the effects on the private labs they took work away from.

Back in 2013, when the Colorado Department of Public Health and Environment closed its labs due to concerns regarding accuracy, a small private lab called ChemaTox, made its way onto the market and has since handled thousands of cases for the state’s law enforcement. However, when CBI dropped its fees at the start of July, it hit ChemaTox hard. According to its owner Sarah Urfer, the business couldn’t keep up.

“It was never our intention to negatively impact a private business. I’m embarrassed and I’m responsible. Where we failed was to do the stakeholder outreach that I expect our agency to do and I should have done in this case to reach out to ChemaTox,” said John Camper, Director of the CBI.

The loss of business that Urfer and her 25 full-time employees suffered within weeks of the change was significant enough that she felt unable to rebuild, leading her to close within the month.

With one of the labs that handled the workload closed for good, all of the tests that were run by them fell onto the CBI.

As of October of last year, Camper announced that the CBI is doing a good job handling its workload and that they are still operating well within the time limits set for speedy trial requirements. However, it must also be noted that the state budgets that have been sent in by the CBI shows that, while they did not clock in any overtime during the months of June and July, the month of August reported that they worked nearly 160 hours of overtime. Camper has stated that he has no intention of asking the legislature for more funding to handle the workload that has already doubled over the last few months and that they still have open positions to fill that will help to keep the turnaround times low.

Prosecutors are still wary and have warned the CBI that, should the department become overwhelmed, they will have to resort to dropping cases because of the inability of the labs to present evidence that the prosecution needs to move forward. The prosecution uses test results for not only DUI cases, but also cases such as vehicular homicide and murder, and toxicology in its many forms are crucial to such cases. In the case of trial proceedings, the prosecution is also worried about the CBI’s ability to be able to provide experts available for testimony at trial.

Lastly, at the Joint Budget Committee in July, a point was made by State Representative Jonathan Singer (D-Longmont) when it was announced that the CBI would be running a full panel test on every DUI case sample that comes through its doors, regardless of whether or not the sample came in for just alcohol analysis. The reason for the full panel was to gather information about the effects of marijuana use throughout the state. Colorado’s current DUI law is not specific to alcohol or drugs, thus there is a grey area, but the CBI has admitted to the potential for challenges on the practice.

Singer questions the constitutionality of such actions. “If we’re looking for substances that weren’t the initiating or even the secondary reason for an arrest or a charge, are we wandering into any federal constitutional concerns about custody of evidence?”

That definitely sounds like something that could be a concern.

 

12 Million Americans Drove While High in 2018, 21 Million Drove Drunk

According to a study conducted by the U.S. Centers for Disease Control and Prevention and data derived from the Substance Abuse and Mental Health Services Administration’s National Survey on Drug Use and Health (NSDUH), 12 million drivers over the age of 16 admitted to driving stoned in 2018. In the same year, close to 21 million said they drove drunk.

The report, published in Morbidity and Morality Weekly Report, mentions “Driving under the influence of marijuana was defined as an affirmative response to the question ‘During the past 12 months, have you driven a vehicle while you were under the influence of marijuana?’”

According to the report, “The prevalences of driving under the influence of marijuana and driving under the influence of illicit drugs other than marijuana were higher among males (6.2%, 1.3%, respectively) than among females (3.2%, 0.5%, respectively). The prevalence of driving under the influence of marijuana was highest among non-Hispanic multiracial persons (9.2%). The prevalence of driving under the influence of marijuana ranged from 0.6% among persons aged ≥65 years to 12.4% among persons aged 21–25 years; the second highest prevalence (9.2%) was reported among persons aged 16–20 years. The highest reported prevalences of driving under the influence of illegal drugs other than marijuana were among persons aged 21–25 years (1.9%) and 26–34 years (1.9%).”

It is also worth noting that the highest prevalence of drug use was in the age groups 21-25 years of age with the second highest prevalence of drug use was noted in the age group 16-20 years old.

What’s more, according to the report, the numbers for those claiming to have driven under the influence of marijuana is still significantly lower than that of those who claim to have driven drunk.

These numbers are based on self-reported responses from the participants. Therefore, the accuracy and scope of the information is limited to the truthfulness and completeness of the responses. The report acknowledges this in its findings. 

Nonetheless, numbers such as these worry people like Helen Witty, president of Mothers Against Drunk Driving (MADD), who said, “Driving under the influence of marijuana is a huge concern, and it’s a huge public health problem that we have such young people using marijuana… It’s natural, they say. But so is snake venom. Natural doesn’t mean that it’s good for you.”

The report by the CDC concludes their discussion by stating, “Impaired driving is a serious public health concern that needs to be addressed to safeguard the health and safety of all who use the road, including drivers, passengers, pedestrians, bicyclists, and motorcyclists. Collaboration among public health, transportation safety, law enforcement, and federal and state officials is needed for the development, evaluation, and further implementation of strategies to prevent alcohol-, drug-, and polysubstance-impaired driving. In addition, standardized testing for alcohol and drugs among impaired drivers and drivers involved in fatal crashes could advance understanding of drug- and polysubstance-impaired driving and assist states and communities with targeted prevention efforts.”              

I wonder, however, how many of the 12 million who claim to have used marijuana before driving can actually be considered impaired? More importantly, how do we inform the public about understanding impairment from the use of marijuana if we still don’t have a valid method of determining it?

Non-Lawyer Judge Throws Out DUI Against Prosecutor

Most of us will agree that we want the courtroom to be a place of fairness and justice. Sadly, some days that just doesn’t seem to be the case. According to Mississippi Department of Public Safety Commissioner, Marshall Fisher, the day a judge made the decision to throw out a DUI case against the Tupelo city attorney was such a day.

According to Fisher, “Judges are to use the law and facts when deciding whether police actions are constitutional, and Justice Court Judge Chuck Hopkins had neither the law nor the facts on his side when he dismissed the case against Tupelo city attorney Ben Logan.”

Back in December, Mr. Logan was stopped at a Mississippi Highway Patrol safety checkpoint and arrested for driving under the influence. He had been seen attempting to avoid the checkpoint by pulling into a private lot of a closed business. Multiple officers witnessed Logan showing visible signs of intoxication such as glassy eyes and slurred speech. He was taken to the Lee County jail but was never booked. He was, however, released to his girlfriend who was allowed to drive him home.

Although hearing was scheduled at the Lee County Justice Court, Logan’s attorneys filed a motion claiming that the checkpoint was unconstitutional. Judge Hopkins agreed with the motion and dismissed the case on July 11th citing court records which apparently did not show that the troopers who conducted the checkpoint had permission from their supervisors.

However, according to Fisher, “No Mississippi Supreme Court case requires law enforcement have permission from their superior before conducting a safety checkpoint. But even if that permission was required, the troopers in this case had it. The Master Sergeant was present and even witnessed Ben Logan avoid the safety checkpoint.”

Mississippi Justice Court is the only court in the state where judges are not required to be attorneys. They are elected positions and according to Jackson County’s website, Justice Court Judges are elected officials serving four-year terms. To qualify to serve as a Justice Judge the candidate must meet the following requirements:

  • High School diploma is mandated
  • Justice Court Training Course provided by the Mississippi Judicial College of the University of Mississippi Law Center
  • Annual continuing education requirement prescribed by the Judicial College
  • Resident of the County at least two years prior to serving.
  • Hold at least one session of court per month, but not more than two.

Guess what? Judge Hopkins is not an attorney and, according to Fisher, “created his own requirements for [the] safety checkpoint.”

Does this bother anyone else? Does it bother anyone else that Judge Hopkins doesn’t need a license to practice law, doesn’t need a law degree, and doesn’t even need an undergraduate college degree?  What’s more, according to the Mississippi Code, newly elected justices have six months to complete their Justice Court Training Course. This essentially means that someone could potentially finish the courses in less time than that.

Attorneys in every other state, for the most part, are required to obtain a four-year undergraduate bachelor’s degree before attending law school. Law schools then select only a handful of top-performing undergraduate students to attend and obtain a law degree. After three grueling years of law school, students obtain a law degree…if they survive law school. Then, if they graduate law school, students can take the bar exam for their respective state, the pass rate of which is often very low (especially here in California). If they pass the bar exam, only then can they become lawyers who can later become judges. This is a screening process to ensure that only qualified, legally versed professionals are able to make important decisions which affect the lives of citizens.

Now contrast this with Mississippi’s lax (to put it mildly) standards.

Lives are literally in the hands of judges and justices. It takes years to learn the law so that it can be applied properly to achieve a just result. It does not and should not take a high school diploma and a six-month (likely less) course. Otherwise, as Fisher pointed out, you have lay-people sitting on judge benches making decision which affect the lives of people, not based on the law, but based on their own personal beliefs, gut feelings, or political preferences.

I find this appalling.

“This case is nothing more than local politics getting the end result they wanted by blaming a state agency,” Fisher said. “When non-lawyer judges start making decisions on what is considered constitutional under the law, these types of mistakes will continue to happen.”

The End of Texas’s Driver Responsibility Program Means More DUI Fines

As of September 1st, 2019, one of the most hated programs ordered by the state of Texas for traffic violations will be no more, but that means more fines for DUI offenses.

The Driver Responsibility Program imposed surcharges on Texas drivers who were convicted of charges such as driving under the influence or driving without a license. These surcharges were in addition to the standard fines for the convictions themselves, and could range from $250 per year (for three years for driving with an invalid license) to $2,000 per year for three years (for a DUI with a blood alcohol of 0.16 or higher). Surcharges could be imposed on those who had one too many simple moving violations as well.

For most, it was a nuisance fee that was added onto whatever they may have done, but for others who were in tighter financial constraints, these fines would add up if they were unable to pay, resulting in suspended licenses, and even more tickets and fines.

According to Terri Burke of the ACLU of Texas, “The Driver Responsibility Program has forced thousands of Texans to pay for their liberty, which is no justice at all. Suspending someone’s license only further removes them from the workforce, leaving them without money to pay additional fees.”

A bill was signed by Texas Governor Greg Abbott to end the program about three weeks ago and it is expected that over 630,000 people will have their licenses reinstated with the conclusion of the program, as long as they do not have any fees of suspensions unrelated to the Driver Responsibility Program. An additional 350,000 people will be able to get their licenses reinstated with the payment of a restatement fee. Seeing these numbers, it is amazing to see how many people were affected by this program.

Now, with the revenue that the state will no longer be able to make from the program, the money must be offset somehow. The bill called for a $2 increase on state-mandated car insurance fees, which would be specifically allocated to trauma hospitals, and the remaining revenue is to be offset by an increase in the fines for DUI offenses. A first time DUI offense currently imposes a fine of $2,000, but with the conclusion of the Driver Responsibility Program, it will be increased to a whopping $6,000 penalty.

The fight to repeal the Driver Responsibility Program had been going on for years with part of the argument against it being that it violated the Equal Protection Clause with its unfair license suspension system. It seems though that advocates finally got their say. Unfortunately, it also seems that there are still many issues to work through. What the drivers who are currently part of the Program need to do with the fees that they have incurred thus far is still unclear. What is also unclear are the repercussions in terms of license points and/or fees between now and September 1st (when the program officially is repealed). It does not seem that the Texas Department of Public Safety has yet made any official announcements in how those details will be handled and how drivers should handle their remaining fees. Hopefully, an announcement with clear directions to the public will be made soon regarding the transition in the next few months.

While drivers in Texas might be spared from paying more money for traffic violations in general as a result of the program’s end, drivers in Texas would also be wise to avoid driving drunk because it could now break the bank.