In dealing with a case of driving under the influence of alcohol, the primary evidence is the driver’s blood-alcohol level, determined by blood or breath testing.  If it is .08% or higher, the driver is presumed to be under the influence to the degree that he cannot safely operate a motor vehicle.  With the passage of so-called "per se" laws in all states, a second crime can also be charged — the crime of simply having a blood-alcohol level of 08% or higher.

Although the breath and blood analysis procedures may be unreliable and inaccurate, the scientific principles underlying them have been shown.  Blood-alcohol concentrations can be measured, if not always accurately,and the majority of people will be "under the influence" with .08% or higher of alcohol in their blood.  This, of course, varies greatly with individual metabolism, tolerance, etc.

But what about driving under the influence of drugs or marijuana?  How do you measure the amounts in the blood?  At what levels is a driver "under the influence"?

Answer:  No one knows.

The following are excerpts from a news release issued one week ago by the Governors Highway Safety Association.  Entitled "Drug Impaired Driving: A Guide for What States Can Do", the press release presents scientific conclusions from a study authored by Dr. Jim Hedlund, formerly a senior official with the National Highway Traffic Safety Administration.
 

New Report Urges National, State Action on Drugged Driving

Washington, DC.  Sept. 30 – This report summarizes the current state of knowledge on drug impaired driving, including what little is known about the costs
and effectiveness of these actions, and identifies actions states can take to reduce drug-impaired driving…

The relations between a drug’s presence in the body, its concentration, measured in blood, breath, saliva or urine, and its
impairing effects are complex and not understood well.  A drug may be present at low levels without any impairing effects. Some
drugs or metabolites may remain in the body for days or weeks, long after any impairment has disappeared (Berning et al., 2015;
GAO, 2015).

In particular, marijuana metabolites can be detected in the body for weeks after use (Berning and Smither, 2014).
On the other hand, concentrations in the body of some drugs decrease rapidly while impairing effects persist. For marijuana,
THC concentrations fall to about 60% of their peak within 15 minutes after the end of smoking and to about 20% of their peak
30 minutes after the end of smoking while impairment lasts for 2 to 4 hours (Kelly-Baker, 2014; Logan, 2014).

In addition, individuals differ in how their bodies absorb and metabolize a drug. In experimental settings, wide ranges of drug
concentrations produce similar levels of impairment in different individuals (Berning et al., 2015). NHTSA’s observation is generally
accepted: “At the current time, specific drug concentration levels cannot be reliably equated with a specific degree of driver
impairment” (Berning et al., 2015). GAO (2015) agrees: “identifying a link between impairment and drug concentrations in the body,
similar to the 0.08 BAC threshold established for alcohol, is complex and, according to officials from the Society of Forensic
Toxicologists, possibly infeasible.”

Alcohol is far simpler because it is quickly absorbed into the body and impairment is directly related to BAC.
The only generally accepted conclusion regarding drug levels and impairment is that impairment usually increases as a drug’s
concentration increases…

In other words, law enforcement has no accurate way to prove that a suspect is impaired by drugs or marijuana.  The only "evidence" of driving under the influence of drugs: the police officer’s subjective and less-than-expert opinion.

 
(Thanks to DUI defense attorney George Bianchi of Seattle, Washington.) 
 

Many are saying that California will be the next state in the Union to legalize recreational marijuana. If their predictions are correct, that would make California the sixth state to do so. Currently, Washington, Colorado, Alaska, Oregon, and Washington D.C. have all legalized recreational marijuana. Although California has not yet legalized recreational marijuana, it has decriminalized marijuana and allows the use of medical marijuana for medical purposes.

With California and other states on the cusp of legalization of recreational marijuana, law enforcement agencies are clamoring for technology that will help them determine how stoned someone is for purposes of driving under the influence.

In June of this year, Cannabix Technologies Inc., a company based out of Vancouver, issued an update on what it hopes to be the first widely used marijuana breathalyzer. According to Cannabix’s website, a prototype has been developed and is currently undergoing testing. According to the company’s founder, retired Canadian police officer Kal Malhi, the device will be able to detect the use of marijuana within two hours.

Lifeloc, a Colorado-based company which already makes and distributes alcohol breathalyzers is also in the race to develop a marijuana breathalyzer.

“I think the first breathalyzer on the market will be a simple ‘yes’ or ‘no’ for the presence of THC at the time of the test, and in that sense it won’t provide a quantitative evidential measure,” Barry Knott, the chief executive of Lifeloc, told Reuters.

If developed, the new marijuana breathalyzer would replace the rather inefficient blood test to determine how much THC (tetrahydrocannabinol), the active component of marijuana, is in a person’s system.

Many states that have legalized marijuana either recreationally or medically have set a “per se” limit, or bright line rule on how much THC can be in a person’s system while driving ranging from 0 to 5 nanograms per milliliter of blood.

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.

So can the same be said for nanograms of THC per milliliter of blood? Unfortunately, no.

Notwithstanding “per se” THC limits in many states, the correlation between nanograms of THC per milliliter of blood and marijuana intoxication is extremely weak.

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. Alcohol, on the other hand, is water soluble and dissipates at a rate of about 0.015 percent per hour. This means that, depending on how much alcohol someone drank, a person can sober up within hours.

This means that 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.

It is unclear whether the marijuana breathalyzers currently being developed will quantify how much THC is in a person’s system. Not that it matters. The amount of THC in a person’s system has nothing to do with how intoxicated they are and, consequently, how much of a danger they are to the roads.

Until a marijuana breathalyzer can determine how intoxicated someone is, we run the risk of arresting sober people for DUI. 

Assembly Bill 1356 has made its way to Capitol Hill and, if passed, would allow law enforcement to use a device similar to a breathalyzer that could detect the presence of marijuana and a number of other drugs in a driver’s system in a matter of minutes.

“It’s very clear that the usage of marijuana is becoming more and more common,” said Assemblyman Tom Lackey from Palmdale, California, who proposed the law.

The law would expand California’s current implied consent law to “provide that a person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or oral fluids for the purpose of determining the drug content of his or her blood or oral fluids.”

Currently, if law enforcement want to test for the presence of drugs in a driver’s system following the lawful arrest of that driver, they need to withdraw blood which could take hours.

According to CBS San Francisco, officers would be able to use a portable drug detection device called Alere™ DDS®2 that would allow law enforcement to perform a test on drivers’ oral fluids gathered from the gum line and cheeks. The swabbed fluid samples could provide results within five minutes according to the device’s developers.

"We’d be testing for marijuana, cocaine, opiates, amphetamines, methamphetamines and benzodiazepine," said Fred Delfino, spokesperson for Alere DDS 2, the company behind the new device.

You may recall from my previous posts that the Los Angeles Police Department had been given a federal grant to test these devices.

“The number of drugged drivers is increasing rapidly, and those of us in law enforcement simply do not have the tools necessary to determine the level of impairment on anything other than alcohol,” said Ron Lawrence, chief of police for Rocklin. “If the legalization of marijuana is in our future, we in California law enforcement need to be prepared to deal with the roadways and safety precautions of tomorrow."

The problem is that the device does not test for impairment. It only tests for the presence of the drugs.

It has yet to be determined what amount of drugs found in a person’s system will constitute impairment. According to Lackey, that part of the bill has not yet been worked out.

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.

"I think that people want to have a clear-cut, black-and-white solution," says Mason Tvert, the communications director for the Marijuana Policy Project, a pro-legalization group. "They want a specific number that we can use to just say that this person is impaired or not. Unfortunately, it’s a little more of a gray area than that."

Unfortunately, Tvert is correct and that gray area can lead to sober drivers getting arrested for DUI of marijuana.

Tetrahydrocannabinol or THC is the active component of marijuana. Unlike alcohol which dissipates after several hours, THC can stay in a person’s system for weeks at a time and well after the person has smoked.

Simply put, the mere presence of THC in a person does not necessarily mean that the person is impaired and incapable of safely operating a vehicle and the new device, if AB1356 passes, could be used to prosecute sober drivers.

How far have we gone in the continuing politically-correct War on Drunk Driving?  How about throwing citizens in jail for driving a car — days, weeks or even months after taking drugs or smoking marijuana?  

Sound ridiculous?

Reformers: Trace Law Unfairly Punishes Drug Users Who Are Not DUI

Proponents are championing legislation to eliminate harsh penalties for drivers who had traces of illegal drugs in their system but were not driving while impaired.

March, 2011.  Chicago, IL.   About a year ago, a 20-year-old Pekin man ran a stop sign, and the ensuing accident killed his passenger. The driver, Brock Meerseman, had marijuana in his system from having ingested the substance a week or more earlier, according to a blood test done at the hospital after the accident.

There was no indication that he was impaired at the time of the accident. Still, under a provision of the Illinois DUI law, Meerseman was cited with driving under the influence and found guilty of aggravated DUI. He faced a sentence of up to 14 years in prison. Had he instead been charged with reckless homicide, the maximum prison sentence would have been three years…

Meerseman is not alone. Many pot-smoking drivers have been charged under the DUI provision. Jeff Hall, a Peoria attorney and member of the ISBA Traffic Laws and Courts Section Council, represented a teenager who had traces of THC in her system from having smoked marijuana earlier. But she was not impaired when she was involved in an accident that resulted in one death and one injury.

“She was sentenced to six years and she has to serve 85 percent of the time,” said Hall, who helped draft an amendment to the DUI law that would eliminate such harsh penalties for drivers who are not impaired at the time of an accident. Tests show that the effects of marijuana typically last a couple of hours, even though the presence of the drug shows up in test results for as long as a month or more.

The National Highway Traffic Safety Administration (NHTSA) acknowledges that THC levels are “impossible” predictors of behavioral impairment and that THC-induced impairment is relatively short-lived, Hall said. In addition, the NHTSA states that “it is inadvisable to try and predict effects based on blood THC concentrations alone, and currently impossible to predict specific effects based on THC-COOH concentrations” (see the report at http://www.nhtsa.gov/People/injury/research/job185drugs/cannabis.htm).

The ISBA and other groups want that provision of the law, which was upheld in a 2011 Illinois Supreme Court ruling, removed. According to an ISBA position paper in support of the proposal, “Under the current Illinois Vehicle Code, a driver who is not impaired is still guilty of a DUI offense or aggravated DUI offense if there is any trace of an unlawful drug in their blood or urine. So, if a driver smoked marijuana two weeks before an accident, it is still a crime even though a urinalysis can’t test for active THC metabolites, and the driver showed no evidence of impairment….This isn’t good policy.”

Is there any rational reason for such laws — other than for politically-correct legislators to look tough to voters?  What is accomplished (other than breeding contempt for the legal system) by throwing a person in jail for driving a car weeks after using a drug?
 

Have you seen the recent headlines, “Study Finds Marijuana as Addictive as Heroin” or “Marijuana Makes you Stupid.” I did and immediately asked myself, “Have we gone back in time?”

After reassuring myself that we hadn’t, in fact, gone back in time, I pulled up the study that prompted so many Reefer Madness-esque headlines.

Recently published in the latest volume of the journal, Addiction, the article is a review of the last 20 years of research on the health effects of marijuana. As it turns out, the study, authored by Wayne Hall, a drug advisor to the World Health Organization, is not telling us anything we don’t already know. Instead, the media has skewed and misquoted the findings to, surprise surprise, create an eye-catching headline.

Although the study found that marijuana use had no permanent effect on the IQ of people who use marijuana periodically or started using as adults, media alarmists chose to focus their attention on the one and only group of people whose IQ was affected by marijuana use. That group was “the small proportion of cannabis users who initiated in adolescence and persisted in daily use throughout their 20s and into their 30s.”

Is marijuana really as addicting as heroin as many of the headlines read? Let’s see what the article actually says. “The life-time risk of developing dependence among those who have ever used cannabis was estimated at 9% in the United States in the early 1990s as against 32% for nicotine, 23% for heroin, 17% for cocaine, 15% for alcohol and 11% for stimulants." Yes, you can become addicted to marijuana, just as you can become addicted to nearly anything, but the study makes it quite clear that it is significantly less than most drugs.

The study doesn’t say anything we don’t already know about marijuana’s effect on driving, namely that marijuana use doubles the risk of an automobile accident. According to the study, “…it was clear from laboratory studies that cannabis and THC produced dose-related impairments in reaction-time, information-processing, perceptual-motor coordination, motor performance, attention and tracking behaviour. This suggested that cannabis could potentially cause car crashes if users drove while intoxicated, but it was unclear whether in fact cannabis use did so. Studies in driving simulators suggested that cannabis-impaired drivers were aware of their impairment and compensated for these effects by slowing down and taking fewer risks. There were similar findings in the few studies on the effects of cannabis use on driving on the road…In summary, the epidemiological and laboratory evidence on the acute effects of cannabis suggests strongly that cannabis users who drive while intoxicated increase their risk of motor vehicle crashes 2–3 times as against 6–15 times for comparable intoxicating doses of alcohol.”

Marijuana use has dramatically increased in recent times, yet there has been no increase in the rates of psychosis…despite what the headlines say.

You actually can overdose on THC, the active compound in marijuana. Based on animal studies, the estimated fatal dose of THC is between 15 and 70 grams. Let’s put this in perspective. The average joint has about 0.06 grams of THC. So based on animal studies, it is estimated that someone can die if they smoke between 238 and 1,113 joints in a day.

Pregnant women should not use marijuana. Big surprise. The study found that there is an evidentiary link between marijuana use during pregnancy and cognitive problems of the child later in life. However, “uncertainty remains because of the small number of studies, the small samples of women in each and the researchers’ limited ability to control for the confounding effects of other drug use during pregnancy, maternal drug use post-birth and poor parenting.”