Category Archives: Drugged Driving

Marijuana Breathalyzer in the Offing?

With marijuana legalization making as much progress as it has in the last few years, it was only a matter of time before someone developed a marijuana breathalyzer. It seems a former Royal Canadian Mounted Police is close to doing exactly that.

The new device called the Cannabix was developed by Kal Malhi and will be able to detect whether a person has smoked marijuana in the last two hours. The Cannabix supposedly works in a manner similar to that of traditional breathalyzers used by law enforcement to determine the blood alcohol content of drivers.

“People are becoming very afraid to drink and drive nowadays because they feel that they will get caught and charged, but they’re not afraid to drug and drive because they don’t feel that law enforcement will do anything about it,” said Malhi.

Although the Cannabix is pending a patent and still has further field testing to undergo, it’s a step in the direction long awaited by law enforcement: a bright line test for DUI of marijuana.

States which have legalized recreational marijuana and some states which have legalized medical marijuana have established a per se impairment level at 5 nanograms of THC per milliliter of blood. Ohio and Nevada have established a per se limit of 2 nanograms of THC per milliliter of blood. Some states which allow medical marijuana have established a zero tolerance rule.

You’ve heard me hoot and holler about the flaws of such standards. THC can stay in a person’s system for over a month. A month after smoking marijuana, the “high” is long gone but, unfortunately, the THC is not. Yet these standards allow officers to arrest someone even though they are no long impaired.

As promising as something like the Cannabix looks to law enforcement, it too does not determine how impaired a person is after smoking. Sure, proximity in time to the smoking of marijuana certainly has a correlation to degree of impairment. (Remember, the Cannabix will tell officers if a person has smoked within the last two hours) We still don’t know how much someone has smoked or how impaired a person is two hours after smoking.

The purpose of alcohol and marijuana DUI laws are to prevent impaired driving. Being impaired is what makes our streets dangerous, not whether someone has smoked marijuana at a given point in the past. The Cannabix creates a DUI standard of how long it’s been since someone has smoked, not whether they are actually impaired.

Imagine if we had the same standard for alcohol: You have one beer at dinner. You drive home an hour and a half later. For whatever reason, you’re pulled over and given a breathalyzer. The breathalyzer tells the officer that you’ve ingested alcohol in the last two hours. Although you’re clearly not impaired after one beer, you’re arrested for DUI simply because you’ve had something to drink in the last two hours.


Does Presence of Marijuana in Blood Constitute Drunk Driving?

It is, of course, against the law to driver under the influence of marijuana (sometimes called "stoned driving"). In most cases, a blood sample will be drawn and analyzed to provide evidence of impariment. And as I've discussed in previous posts, there are nearly insurmountable problems law enforcement and prosecutors have with this.  See, for example, Identifying and Proving DUI Marijuana ("Stoned Driving"), Driving + Traces of Marijuana = DUI, How Accurate is Detection and Evidence of Drugged Driving? and DUI Marijuana: Does Marijuana Impair Driving?     

Quite simply, it is extremely difficult if not impossible to prove that the presence of given levels of marijuana in the blood proves that the suspect was impaired when driving.  First, there is very little agreement on how much marijuana it takes to impair a driver's physical and mental faculties.  Second, it is difficult to determine from blood tests what the active levels were at the time of driving. It is a scientific fact that inactive metabolites of marijuana remain in the bloodstream for weeks.  

But, of course, there is a simple solution — similar to one created a few years ago which made it easier to convict citizens accused of driving while under the influence of alcohol.  Fqced with difficulties in proving alcohol impairment, the various states simply passed so-called "per se" laws — laws which made having .08% of alcohol in the blood while driving a crime.  Impairment was no longer an issue to be proven; the crime was simply having the alcohol in your blood.  And the conviction rates increased dramatically.  

Today, a similar approach is being used by a growing number of states:  making the mere presence of marijuana in the blood while driving a crime — regardless of whether it had any effect.

Some courts, however, are beginning to have concerns about this "per se" approach:

Presence of THC Metabolite in Blood Does Not Prove Impaired Driving , Arizona Supreme Court Finds

Phoenix, AZ  – Arizonans who smoke marijuana can’t be charged with driving while impaired absent actual evidence they are affected by the drug, the Arizona Supreme Court ruled Tuesday.

The justices rejected arguments by the Maricopa County Attorney’s Office that a motorist whose blood contains a slight amount of a certain metabolite of marijuana can be presumed to be driving illegally because he or she is impaired, saying medical evidence shows that’s not the case.

The ruling most immediately affects the 40,000-plus Arizonans who are legal medical marijuana users. It means they will not be effectively banned from driving, given how long the metabolite, carboxy-THC, remains in the blood.

It also provides legal protection against impaired-driving charges for anyone else who drives and has used marijuana in the last 30 days — legal or otherwise — as well as provides a shield for those who might be visiting from Washington or Colorado, where recreational use of the drug is legal.

Maricopa County Attorney Bill Montgomery said Tuesday’s ruling will result in roads that are less safe. He said if courts will not accept carboxy-THC readings as evidence of impairment, then there is no way of knowing who is really “high” and who is not…

A breath of fresh air in the ongoing hysteria of MADD's "War on Drunk Driving"…

California Legislature Kills Zero-Tolerance Marijuana DUI Law

In early April, I wrote about the terrible idea that was AB 2500.

Introduced by Assemblyman Jim Frazier, the original bill would have changed California’s current DUI law making it unlawful for a person to drive with any detectable amount of marijuana in the system. The legislation was later amended to set a limit of two nanograms of THC per milliliter of blood. The law also sought to make it illegal to drive with any trace of any other controlled substance in the system.

Whew! You can all let out a collective sigh of relief because the proposed law was killed in the California legislature.

AB 2500 was defeated by the Assembly Public Safety Committee by a vote of 4-2.

I hate to beat a dead horse, but I simply can’t say it enough. We cannot punish sober drivers merely because they may have smoked marijuana a day, a month, or a week ago.

Unlike alcohol, THC stays in a user’s system for up to weeks at a time even though the intoxicating effects of the marijuana may only last a couple of hours. And unlike the established relationship between blood-alcohol levels and impairment, THC in the blood does not necessarily correlate to impairment. In fact, the National Highway Traffic Safety Administration has said, “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects.”

In late April, the Arizona Supreme Court struck down an Arizona law similar to California’s proposed AB 2500, and rightly so.

Arizona’s high court reaffirmed the trial court’s correct decision to toss the case of Hrach Shilgevorkyan who had been arrested for driving under the influence after a blood test detected the presence of marijuana.

“For example, at oral argument the State acknowledged that, under its reading of the statute, if a metabolite could be detected five years after ingesting a proscribed drug, a driver who tested positive for trace elements of a non-impairing substance could be prosecuted,” said the court in supporting its opinion.

The Court went on to conclude, "Because the legislature intended to prevent impaired driving, we hold that the 'metabolite' reference in [the law] is limited to any of a proscribed substance's metabolites that are capable of causing impairment . . . Drivers cannot be convicted of the . . . offense based merely on the presence of a non-impairing metabolite that may reflect the prior usage of marijuana.”

Let’s hope the California Supreme Court never has to make such an obvious decision.

But you just never know. Frazier’s response to his bill’s failure? “I have eleven more years” to continue working on the bill.

California Assemblyman Proposes Marijuana Zero-Tolerance DUI Standard

We recently referred you to an American Bar Association Journal article in which Lawrence Taylor was interviewed about the difficulties of correlating traces of marijuana in the blood and intoxication. We also mentioned the use of zero-tolerance laws for marijuana by some states as a way to address issue. It seems that one California assemblyman looks to include California in that list of zero-tolerance states.

Currently, for a person to be convicted of a California marijuana DUI, it must be proven that they were “under the influence.” A person is under the influence when his or her physical or mental abilities are impaired to such a degree that he or she no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.

Assemblyman Jim Frazier recently introduced AB 2500. The bill, if passed, would change California’s current DUI law making it unlawful for a person to drive with any detectable amount of marijuana in the system. The law also seeks to make it illegal to drive with any trace of any other controlled substance in the system.

The proposed language of the law would read:

“It is unlawful for a person to drive a vehicle if his or her blood contains any detectable amount of delta-9-tetrahydrocannabinol of marijuana or any other drug classified in Schedule I, II, III, or IV under the California Uniform Substances Act (Division 10 (commencing with Section 11000) of the Health and Safety Code).”

The legislature rejected a similar bill introduced last year by Senator Lou Correa. Rightly so. Let’s hope they do the same to AB 2500.

Delta-9-tetrahydrocannabinol (THC) can remain in a person’s blood for up to weeks and longer after marijuana use, and well beyond the point at which a person cannot safely operate a vehicle. That doesn’t matter to those who support the proposed law. It seems they would be okay with punishing perfectly sober drivers simply because they ingested marijuana at some point in the last several weeks.

Marijuana-Impaired Driving: A Prosecutor’s Nightmare?…or the Beginning of Criminal Unimpaired Driving?

I’ve posted in the past about the difficulties of proving that a DUI suspect was impaired from using marijuana.  See DUI Marijuana: Does Marijuana Impair Driving?,  Identifying and Proving DUI Marijuana (“Stoned Driving”).  I’ve also commented upon some states’ simple solution to those difficulties:  set arbitrary legal limits of marijuana in the blood — or simply outlaw driving with any trace of marijuana in the blood — regardless of lack of impairment (“zero tolerance”).  See Driving + Trace of Marijuana = DUI.

This situation became even more difficult for the prosecution with the decision by the Supreme Court of the United States (SCOTUS) in Missouri vs. McNeely last year, requiring the police to obtain a warrant before drawing blood without the driver’s consent.  Since a breathalyzer can’t measure or even detect marijuana, this left the police in a difficult situation.

Recently, I was interviewed at some length about this by a reporter from the American Bar Association Journal.  Unlike many interviews I’ve given reporters, this one resulted in a very thorough and well-done article about the entire issue…


SCOTUS Ruling Could Complicate Laws on Impaired Driving

ABA Journal, April 2014 issue — In December 2012, Emily Sue Falkenstein of Renton, Wash., drove into a marked crosswalk where wheelchair-bound Gregory Ramirez, 48, was crossing with his 6-year-old niece in his lap. The crash broke his leg and his wheelchair, and it left the girl with bruises and scrapes, according to court papers.

The responding officer said Falkenstein’s car smelled strongly of marijuana, but Falkenstein refused to take a blood test voluntarily. At the time, Washington law made blood draws mandatory for anyone arrested on charges of felony DUI, vehicular homicide or vehicular assault. A warrantless test eventually showed above-legal levels of alcohol and marijuana in Falkenstein’s bloodstream.

Initially, Falkenstein faced felony charges of vehicular assault and reckless endangerment. But between the crash and her July 2013 plea deal, the U.S. Supreme Court decided Missouri v. McNeely. In that case, the court said officers may not take blood samples from drivers who refuse to provide them voluntarily, unless they have a warrant or some kind of “exigent circumstance.” The rapid disappearance of alcohol from the bloodstream is not considered an exigent circumstance, the court said, though it might be a factor.

Because of the ruling, King County prosecutors decided not to use the results of the blood test as evidence, says Falkenstein’s attorney, Philip Petersen of Auburn, Wash…

As in the Falkenstein case, McNeely could complicate intoxicated-driving prosecutions all over the country. According to federal Department of Transportation research, about 20 percent of drivers nationwide refuse to take a test when asked. But a long wait for a warrant may destroy key evidence by allowing the driver’s body to metabolize alcohol or drugs.

Although the Supreme Court said this is not a per se exigent circumstance, it’s still a problem for police agencies without the procedures or technologies to get a warrant quickly. That’s especially so in the 15 states that expressly or implicitly decline to allow electronic warrant applications.

The wait may pose a special problem with drug-impaired driving, which is generally detected by a blood test. McNeely came down just months after Colorado and Washington legalized the possession and use of small amounts of marijuana. Prosecutors in those states expect a rise in marijuana-intoxicated driving; a marijuana “legal limit” was built into Washington’s ballot initiative to address that concern.

Meanwhile, the rate of prescription drug abuse—particularly abuse of opioid or narcotic painkillers—has gone up dramatically since 1999, according to the Atlanta-based Centers for Disease Control and Prevention. In 2012, Kerry Kennedy (daughter of Robert F. Kennedy and ex-wife of New York Gov. Andrew Cuomo) was charged with DUI after an accident involving the sleep aid Ambien; she was acquitted Feb. 28.

Another controversial concern about McNeely is that it could invalidate the blood-testing requirements in states that imply consent laws, which say drivers consent to take tests by receiving driver’s licenses. Because McNeely reaffirms that there’s a constitutional right to refuse blood tests, some attorneys believe states won’t be able to make waiving that right a condition of driving privileges. If courts agree, it could increase test refusals and thus make it harder to prove intoxicated driving.

“This means we can no longer sanction drivers who refuse blood testing by using that refusal as consciousness of guilt at trial. Nor, as was the case in Washington, can we mandate blood testing even in fatality cases,” says Moses Garcia, a traffic safety prosecutor for the state of Washington. “This is a huge setback.”

Lawyers on both sides say the wait time for a warrant is unlikely to cause many problems—at least not new problems. Leonard Stamm, a defense attorney who helped to write an amicus brief in McNeely for the National College for DUI Defense and the National Association of Criminal Defense Lawyers, says the new problems are arising in the few jurisdictions that were routinely taking blood without a warrant before McNeely. Some jurisdictions agreed with Missouri that alcohol dissipation creates a per se exigency; other states also had laws permitting warrantless draws in specific circumstances, such as after a crash.

In those areas, McNeely forced judges to consider whether the warrantless blood draw evidence, from cases pending while McNeely was decided, is admissible. Stamm of Greenbelt, Md., says the U.S. Park Police were routinely taking blood from test refusers without a warrant. He says the local judge who has the resulting cases has been granting or denying suppression motions based on whether each case has exigent circumstances. In other jurisdictions, he says, some judges have used the good-faith exception to the exclusionary rule.

In practice, there’s a delay before almost any DUI test. The NCDD’s brief said there are built-in delays even when a driver agrees to a roadside breath test, the quickest kind. The officer must read the implied consent advisory, sometimes permit a phone call to counsel, and observe the driver for 15 to 20 minutes to ensure the test results are not tainted.

For a test refusal, the NCDD brief said, it typically takes about two hours for police to get blood drawn. In an outlier case it cited, the blood draw took four hours from the time of the traffic stop. And in 21 states, the NCDD said, it “has long been the norm” to get a warrant after all or most test refusals…

Delays before the blood test are not generally fatal to an alcohol DUI case, even if the results show a driver is just under the legal limit, which is 0.08 percent blood-alcohol content in every state. That’s because alcohol is metabolized at a predictable rate. Usually, the prosecution can bring in an expert to testify about the driver’s likely blood-alcohol content at the time he or she was driving. (However, Garcia says that’s not true when the alcohol level was low to start with, as well as when dealing with someone whose body metabolizes alcohol quickly.)

But the situation is more complicated with drugs. Drugs are not eliminated from the body in a predictable way, Garcia explains, so toxicologists can’t extrapolate backward.

“With alcohol, you have a predictable metabolism,” says Stamm. “But with the drugs you test for, you can’t say that.”

That’s one reason the warrant requirement could exacerbate problems with proving drug DUIs. Garcia says future litigation might focus on whether this problem creates a per se exigency in drug DUI cases, even though McNeely found none for alcohol.

The extrapolation problem is part of a general lack of science helping prosecutors connect intoxication with impairment, DUI defense lawyers say. And that makes it harder to convict a drugged driver.

“I used to be a district attorney in LA,” says Long Beach, Calif., defense attorney Lawrence Taylor, whose Drunk Driving Defense treatise was cited by Chief Justice John G. Roberts Jr. in his concurrence to McNeely. “When they filed a case, I would make darn sure that there was sufficient evidence independent of the blood test to convict, because the blood test is probably not going to help you a whole lot.”

The trouble, Taylor says, is telling the jury what the test results mean. In some states, there are “zero tolerance” laws that permit juries to convict if a blood test shows the presence of any controlled substance. (Some of these laws apply only to certain drivers or certain drugs.) But the standard in the majority of states, including California, is whether the driver was under the influence or incapable of driving safely.

“Let’s say [the blood test] comes back and says Xanax or amphetamines. OK, how much? Some figure. OK, what does that mean? That’s where they don’t know,” Taylor says. “Because there are very few studies and specific drugs tested as to how they impact the ability to drive a car safely. So they can’t translate it for a jury into whether the person is under the influence.”

“They might have a statement from the defendant that ‘I took such and such a drug at such and such a time,’ ” Stamm says. “They almost need that in order to prove those kinds of cases.”

In these states, prosecutors might also have to show that any subjective evidence of impairment at the scene, such as stumbling or slurred speech, was actually caused by the drugs.

“Jurors want proof that the impairment is from the drugs and not from any other potential basis,” says Garcia. “That means disproving chronic medical issues, injuries and tolerance—to name a few issues that arise in blood cases. When we are talking about prescription drugs, jurors also want us to prove the driver ‘knew’ about the harmful effects of the drug by some kind of warning.”

This isn’t to say that blood tests are completely useless, Garcia notes. Blood tests are an objective-seeming way to corroborate the officer’s observations of things like bloodshot eyes.

“It tends to support the officer’s observations,” Garcia says, “even though he had no idea what the result was going to be.”

Getting a warrant to test for marijuana presents a special challenge. First, marijuana is the most widely used illicit drug, according to the National Institutes of Health. It’s also increasingly available, thanks to medical marijuana statutes in 20 states and Washington, D.C., and recreational legalization in Colorado and Washington.

There’s some evidence that legalization has increased driving under the influence of marijuana in Washington state. After the state’s December 2012 legalization date for possession, the Washington State Patrol’s toxicology lab reported a 47.8 percent increase in DUI marijuana cases between January and July 2012 and from January to July 2013. Studies correlating traffic fatalities with marijuana have been less conclusive; one study found that fatalities actually went down after medical marijuana laws, and it suggested drivers were substituting marijuana for alcohol.

McNeely’s warrant requirement could also complicate marijuana cases because THC, the active ingredient in marijuana, is eliminated from a user’s bloodstream relatively quickly. By contrast, opiates like heroin or Oxycontin may take days to leave the bloodstream.

“A person who smokes marijuana can go from zero to well over 100 nanograms [of THC in the bloodstream] in a couple of minutes,” says Chris Halsor, a traffic safety resource prosecutor for the state of Colorado. “But as soon as they ingest it, it starts to dissipate out of the system precipitously. [The driver can be] under 20 or under 10 within an hour.”

To address concerns about marijuana-impaired driving, states are increasingly trying to establish legal limits for blood-THC content like the 0.08 percent limit for alcohol. In the last 10 years, six states have set higher-than-zero legal limits for THC: Colorado, Nevada, Ohio, Pennsylvania, Washington and, most recently, Montana. In five of those states, prosecutors can use blood test evidence to show a per se violation. In Colorado, the evidence creates a “permissible inference” that the driver was unsafe, allowing the jury to consider other parts of the situation.

Garcia says regardless of dosage, studies show THC will drop below 5 to 6 nanograms per milliliter—Washington’s per se limit is 5 ng—60 to 75 minutes after the smoker’s last puff. If the THC level is below 2 ng, the state’s toxicology lab won’t even confirm it was there. This is an especially big problem, he says, because drivers generally stop smoking before they get into the car.

“In most cases … the 75-minute clock will have already started at the time of the stop,” he says. “If officers could know when the driver last smoked, they could estimate how long they have before the evidence is completely lost.”

As a result, time is important when taking a blood sample from an allegedly stoned driver—at least in the states with zero tolerance and per se rules. If there’s a several-hour delay while the officer gets a warrant and takes the driver to a hospital, the blood evidence can be lost. And as with other drugs, it’s difficult to extrapolate backward from a low test result.

In other states, however, marijuana-intoxicated driving is just as hard to prove with a blood test as other drugged driving. In fact, it may be harder in some ways. Colorado marijuana activist Mason Tvert, a spokesman for the Marijuana Policy Project, says scientists haven’t been able to come up with a clear limit above which most or all drivers are unsafe. That’s partly for the same reasons that the 0.08 alcohol limit isn’t truly universal, he says: body weight and tolerance differ between drivers. But in addition, frequent marijuana use can leave a small amount of THC in the blood of sober people, throwing off test results.

That’s one reason that, when considering a marijuana DUI legal limit for a sixth time, the Colorado legislature chose the permissible inference rule.

“Per se failed in Colorado multiple times because legislators could not accept the possibility that people who are not impaired could be automatically guilty of DUI,” Tvert says. Furthermore, he says, there’s some evidence that low levels of marijuana intoxication can actually make drivers safer. That’s both because marijuana can reduce risk-taking behavior, and because drivers tend to recognize that they are impaired. In two studies, one by the Department of Transportation, subjects expressed a growing reluctance to drive as they got high—even on a closed course.

DUI defense attorney Taylor believes legislatures’ solution to this will be more zero tolerance laws, which make it easier to convict without examining whether the driver was impaired. He says there’s a movement in the California legislature toward such a law for marijuana. Tvert says a lot of elected officials have embraced a 5-nanogram limit, as seen in Colorado, Montana and Washington.