Category Archives: Drugged Driving
According to the California Highway Patrol, the number of arrests for driving under the influence of marijuana has increased since recreational marijuana in California became legal in 2018. Yet, determining when someone is under the influence of marijuana to a degree that makes them incapable of safely operating a motor vehicle remains as difficult as it always has been…or has it?
California Vehicle Code section 23152(f) makes it “unlawful for a person who is under the influence of any drug to drive a vehicle.”
Quite clearly, marijuana is a drug even if it is recreational. Whether a transportation device qualifies as a “vehicle” for purposes of this law is a different subject for a different day. The bigger question, however, is whether someone is “under the influence” after having smoke marijuana.
To be “under the influence” as the result of consuming marijuana, a person must have his or her mental or physical abilities so impaired that he or she is unable to drive a vehicle with the same caution of a sober person, using ordinary care, under similar circumstances.
While this definition might sound nice, it is still difficult to determine how much marijuana an individual must consume before they are so “high” that they are unable to drive a vehicle with the same caution of a sober person, using ordinary care, under similar circumstances.
Unlike alcohol, there is little correlation between the amount of marijuana someone has consumed and how impaired a person is.
Alcohol is water soluble, which means that it enters and leaves the bloodstream fairly quickly. Additionally, a person’s blood alcohol content, which can be determined rather quickly and accurately, has scientifically been shown to correlate with how drunk (i.e. impaired) someone is. Every state, with the exception of Utah, has a blood alcohol content limit of 0.08 percent because, generally speaking, that is the point at which alcohol begins to affect a person’s motor skills, thus making them “under the influence” for purposes of a DUI with alcohol.
THC (tetrahydrocannabinol), the psychoactive component to marijuana, on the other hand, is fat soluble. Therefore, unlike alcohol, it can stay in a person’s system for much longer than alcohol. In fact, regular users of marijuana can still have THC in their systems weeks after having consumed marijuana and certainly long after being high, which necessarily means that it cannot and should not be used to determine how high someone is, and whether they are “under the influence.” Yet, current blood tests only detect the amount of THC in a person’s system, but there is no way to determine how “high” someone is.
Oakland based Hound Labs is trying to change this by creating the first breathalyzer to measure “recent” marijuana and alcohol use on the breath.
“When you can you find THC in breath, and that can require some incredibly sensitive tools, but when you can find it, then you know that the person used very, very recently,” said Dr. Mike Lynn, emergency room physician, reserve deputy sheriff, and founder of Hound Labs.
Working in conjunction with UCSF, Hound Labs determined that THC can be found on a person’s breath.
“We found THC in all twenty test subjects, and what was really interesting, is that the THC peaked at about 15 minutes, and then it went out of the breath within 2 to 3 hours,” said Dr. Lynn.
According to Dr. Lynn and Hound Labs, if THC is found on the breath, it means that a person had smoked within the last few hours. They also determined that the first two to three hours following marijuana consumption is when a driver is at the greatest risk for being impaired.
Hound Labs were granted $30 million in funding to continue to develop and manufacture the marijuana breath test to be used by law enforcement by the end of the year.
While it may be a step in the right direction in finding the elusive answer to the question, “When is someone too high to drive?” issues remain. When Hound Lab’s device detects that someone consumed marijuana “recently,” how recent is it? Does “recent use” account for even negligible amounts of marijuana consumption? Will “recent use” change the way we draft our DUI of marijuana laws?
Bottom line is that, before we get too carried away, we need to make sure that whatever safeguard and/or preventative measures we put in place to stop high drivers do not infringe on the rights of people who consume marijuana safely and lawfully.
Last month, Illinois became the 11th state to legalize marijuana and since just a few weeks ago, we reminded our readers about The Basics of a California DUI, this may be a good time to also remind our readers that a DUI is not just about alcohol.
We tend to think about drunk driving only in terms of alcohol, primarily because it is the more dominant of legal substances that leads to a DUI. However, marijuana is also becoming more widespread and legal in recreational applications.
While marijuana may still be used by many for its medical properties, there has definitely been an increase in recreational use here in California, thus making DUI of marijuana more prevalent than it has been in the past.
California Vehicle Code section 23152 (f) states, “It is unlawful for a person who is under the influence of any drug to drive a vehicle.” “Any drug” includes those that are legal. The important factor here is “under the influence.” Although, prescription drugs and other legal drugs fall within this purview of “any drug,” a person must also have his or her mental or physical abilities impaired to such a degree that
he or she is unable to drive a vehicle with the caution of a sober person to be “under the influence.”
A recent survey by the AAA revealed that many Americans don’t believe that they will get caught when driving high on marijuana. An estimated 14.8 million Americans admitted to driving within one hour of using marijuana.
We have previously covered topics that have dealt with the insufficient methods of determining impairment, especially when it comes to the effects of THC and other drugs. This may add to the public’s belief that they may not get caught.
However, according to Executive Director of the AAA Foundation for Traffic Safety, Dr. David Yang, “Marijuana can significantly alter reaction times and impair a driver’s judgement. Yet, many drivers don’t consider marijuana-impaired driving as risky as other behaviors like driving drunk or talking on the phone while driving.”
While it is true that no research has proven an exact correlation between impairment and specific levels of THC, unlike how we can calculate a correlation between heightened BAC levels, law enforcement is taking measures to train their officers to better detect impaired drivers. It is only a matter of time before a more consistent method of determining marijuana-impairment will be developed. There are already scientists and researchers hard at work in attempting to create a breathalyzer-type test for determining THC levels and even impairment.
Even current alcohol-testing breathalyzers (used for both the roadside test and for the mandatory “chemical test”), which have been around for quite some time, are by no means perfect. Depending on the officers administering them, how they are administered, and how they’re maintained, breathalyzer results can be challenged by competent DUI attorneys.
While probable cause may seem harder to prove with marijuana, or other drugs, when compared to alcohol, it does not mean that you are not actually impaired. The AAA website summed it up nicely, “AAA recommends all motorists avoid driving while impaired by marijuana or any other drug (including alcohol) to avoid arrest and keep the roads safe. Just because a drug is legal does not mean it is safe to use while operating a motor vehicle. Drivers who get behind the wheel while impaired put themselves and others at risk.”
It is not uncommon for police to be trained in recognizing drug intoxication. But should they be allowed to testify as experts in court about drug intoxication in DUI cases?
At least one judge believes not, and rightfully so.
Timothy B. Callahan, from Cheshire, Massachusetts, was pulled over in May of 2016 after police received a report that he had smoked laced marijuana and was acting violently. Additionally, he was alleged to have been speeding and driving erratically before the stop.
Callahan was arrested on suspicion of driving under the influence (operating a motor vehicle under the influence or “OUI” as it’s called in Massachusetts).
While being booked, police called in Officer Brennan Polidoro to observe Callahan.
Polidoro received a drug-recognition certificate in 2014 and has since been considered the only Drug Recognition Expert in the county. As of the summer of 2018, Polidoro had evaluated over 15 people accused of driving under the influence of narcotics.
Following Polidoro’s evaluation of Callahan, Polidoro determined that Callahan was under the influence of drugs and Polidoro’s conclusions were included into the police report.
During Callahan’s criminal case, prosecutors sought to have the court recognize Polidoro as an expert so that he could provide testimony about the effects of drugs on a human and offer an opinion as to whether someone was under the influence of drugs.
Callahan’s attorney filed a motion seeking to exclude Polidoro’s testimony as an expert.
During the hearing on whether Polidoro should be allowed to testify as an expert, the prosecution offered evidence that Polidoro was trained in drug recognition and that the training was based on three law enforcement studies from 1985, 1986, and 1994. Evidence was also offered that after evaluating 12 individuals during training, Polidoro was determined to be “proficient” by his instructors who formed their opinions as to his proficiency based on the same studies.
Let me get this straight. The prosecution is arguing that an officer should be deemed an “expert” in how chemicals affect the human body if other law enforcement officers think they’re proficient, not physicians or chemists or other medical professionals? “Proficiency” after 12 training evaluations, really? Am I missing something? Does Polidoro have a background in chemistry or medicine?
What’s more, “proficiency” as determined by law enforcement is an accuracy rate of 43% to 49% when people did not have drugs in their system. Really?!?! That means that law enforcement considers being wrong 57% to 51% of the time as “proficient.” With people’s lives at stake, you’d think they’d set their standards a little bit higher.
Fortunately, the court disagreed with the prosecution.
“As law enforcement has embraced these studies as the basis for their trainings, the Court finds that, `proficient,’ as used by law enforcement means a 43% to 49% accuracy rate for identifying those subjects with no drugs in their systems,” said Judge Jennifer Tyne. “The Court does not find this to be reliable, let alone proficient.”
“Based on the evidence presented at this hearing, the Court finds that the body of knowledge, the principles and the methods that the officer was instructed on are not reliable predictors of whether an individual is under the influence of certain narcotics,” Tyne said.
Having denied the prosecution the ability to introduce Polidoro’s testimony about drug recognition and the effects of drugs on humans as an expert, Judge Tyne did, however, say that Polidoro could testify about his observations of Callahan and any statements Callahan might have made after Callahan’s arrest.
Callahan may very well have been under the influence of drugs while driving, but that’s not the point. The court should not allow the testimony of “experts” without a sufficient basis to deem that person an expert. Doing so can lead to wrongful convictions in DUI and any other types of criminal cases.
During this past New Year’s holiday, the Los Angeles Police Department utilized a new portable oral test that is able to check for the presence of marijuana, cocaine, methamphetamines, and other drugs in a person’s system. In their attempt to start aggressively enforcing impaired driving laws, they decided to use this test at New Years’ checkpoints even though the test had only been used about 50 times prior. Prosecutors hope that this eight-minute oral fluids test will eventually become an effective indicator of impairment of drugs, though they have yet to use any results from these tests as evidence in their cases.
Although this test does have the capability of checking for the presence of THC, which is the component most identified with the use of marijuana and which causes the psychoactive effects of marijuana, it does not test for impairment from THC. However, since the legalization of recreational marijuana in several states, experts have struggled to determine an appropriate level of use that would consistently label a person to be “impaired.”
It is undoubtedly important for law makers to be presented with research that helps to determine at what level of THC presence that will cause a person’s impairment. Without this, the current legal terminology of “under the influence” is extremely subjective. Unlike the research with alcohol that determined that there is a strong correlation between impairment and blood alcohol levels higher than 0.08, the research with THC levels are still inconclusive. Both neuroscientists and pharmacologists are having difficulties determining to what extent the drug can impair a person’s ability to drive as well as an appropriate way to measure it. Private companies are currently working on a breathalyzer to test for impairment similar to that used in alcohol related cases, however, the results are still not as definitive as the tests used to determine impairment of alcohol.
In the interim, the Legislature’s Special Commission on Operating Under the Influence and Impaired Driving is recommending mandatory drug testing for stoned drivers under the threat of license suspension. Law enforcement insists that this is the best way to keep stoned drivers off the road.
The threat of losing one’s license may be an effective way to keep stoned drivers off the streets, but at this point in time, it also comes with a multitude of issues, including those that make the tests unconstitutional. For one, it is still unconstitutional to force a blood draw or saliva test without a warrant.
An additional issue is that unlike alcohol that metabolizes fairly quickly and at a measurable rate, THC can last in one’s body for days, even weeks. The “recommended” tests may undoubtedly accurately measure the amount of THC in the body, but there is still no measurement for impairment. ACLU Field Director Matt Allen, who is a member of the special commission stated, “We want to ensure that if motorists are faced with penalties such as losing their license for not taking a drug test that that test is scientifically proven to measure impairment.” However, he was the lone “no” vote on the recommendation.
The scientific community is undoubtedly working on the answer. Hopefully sooner rather than later, the public will be presented with a fairly accurate level of what impairment under the influence of marijuana means. Without it, it is not only law enforcement who is at a loss for efficiently assessing impairment, but all responsible users who lack a point of reference of this newly legal drug to make sure that they are not inadvertently putting the public in danger. Until then, we cannot arbitrarily punish people who have THC in their system, but are not impaired by it.
As predicted, recreational marijuana is here in California. California joined Nevada, Oregon, Washington, Colorado, Maine, Vermont, Massachusetts, and the District of Columbia in legalizing both medical and recreational marijuana. Thirty states and the District of Columbia have legalized medical marijuana. The trend of states in the expanding legalization of marijuana has had tech companies scrambling to become the first to develop a marijuana breathalyzer.
However, a California company has recently claimed to have cracked the code.
California Vehicle Code section 23152(e) makes it illegal to drive a vehicle while under the influence of drugs including marijuana. Unlike California’s DUI of alcohol law, there is no legal limit for marijuana, or more specifically, tetrahydrocannabinol (THC) the psychoactive component of marijuana. Therefore, a person can only be arrested and convicted of a marijuana DUI if the ingestion of marijuana impairs a person’s ability to drive a vehicle as a sober person would under similar circumstances.
To prove that a person is driving under the influence of marijuana, a prosecutor can use officer observations of driving patterns, observations during the traffic stop, performance on field sobriety tests, and the presence of THC in any blood test done.
Although THC can be detected in quantities of nanograms per milliliter of blood, the quantification is unlike alcohol in that the degree of impairment is unrelated to the amount of THC in a person’s blood. With alcohol, there is a fairly accurate correlation between a person’s blood alcohol content and how impaired they are. Therefore, unlike alcohol where prosecutors only need to prove that a person’s BAC was above a 0.08 percent, with marijuana, prosecutors can only prove that a person was “under the influence.”
Since “under the influence” is an extremely subjective standard, it is often very difficult to prosecute DUI of marijuana cases. This is especially true if the driver refused to perform the field sobriety tests and/or the officer did not observe driving that would be indicative of someone who is under the influence of marijuana.
Hound Labs, located in Oakland, California, is hoping to bridge the gap for officers and prosecutors.
“We are trying to make the establishment of impairment around marijuana rational and to balance fairness and safety,” said Hound Labs CEO Mike Lynn.
The company is claiming that it has developed a breathalyzer that can detect whether a subject has ingested marijuana in the last two hours, which many to consider the peak time for marijuana impairment after ingestion.
“When you find THC in breath, you can be pretty darn sure that somebody smoked pot in the last couple of hours,” Lynn says. “And we don’t want to have people driving during that time period or, frankly, at a work site in a construction zone.”
If accurate, Hound Labs would be the closest to developing this type of technology. However, thus far, no company has yet developed a machine to detect actual impairment.
According to Lynn, law enforcement are trying to determine who is impaired as opposed to “”somebody who smoked maybe yesterday or a few days ago and is not impaired. They’re not in the business of arresting people that are not impaired when it comes to marijuana. That makes no sense at all.”
Several law enforcement agencies will begin testing Hound Lab’s breathalyzer this fall. “They’re interested in it providing objective data for them at the roadside,” says Lynn. “That’s really the key, objective data at the roadside — just like we have for alcohol.”
For those of you who think that it is safe to smoke some marijuana and get behind the wheel, be aware that law enforcement could be out with a new roadside tool at their disposal to confirm that you have smoked within two hours, that is if Hound Labs’s new device does that it claims it can do.