Category Archives: Drugged Driving
Prop. 64 is in full swing here in California. While medicinal marijuana has been legal in California since 1996, recreational marijuana is now available for adults who are at least 21-years-old, subject to certain limitations. Up to an ounce of marijuana can be purchased per day and consumed in private locations. The private location cannot, however, be in a vehicle whether you are the driver or the passenger. More importantly for us, a person still cannot drive while under the influence of marijuana.
To be legally under the influence of marijuana a person’s mental or physical abilities are impaired to a degree that they can no longer drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstance.
This definition of impairment is the same for a DUI of alcohol as well. However, with a DUI of alcohol, a person need not be under the influence as long as they have a blood alcohol content of at least 0.08 percent at the time of driving. The purpose behind this rule is that science has established a strong correlation between a blood alcohol content of 0.08 percent or higher and the definition of impairment spelled out above.
Alcohol, which is water-soluble, is absorbed and eliminated from the body relatively quickly. In most circumstances, if a person consumes alcohol during an evening of drinking, the alcohol should be eliminated by the following morning.
The same, however, cannot be said of marijuana. When someone consumes marijuana, the “high” comes from tetrahydrocannabinol (THC) and can last several hours. THC is fat-soluble and can stay in a person’s system for weeks, possibly longer, even though the “high” has long since worn off. As such, there’s little to no correlation between the amount of THC in a person’s system and whether they meet the definition of being under the influence stated above.
Notwithstanding the lack of a correlation between the amount of THC in a person’s system and degree of impairment, Washington State, which has also legalized recreational marijuana, set a limit of 5 nanograms of THC per milliliter of blood in a person’s system.
Lt. Rob Sharpe, who works for the Washington State Patrol’s impaired driving unit, told the Los Angeles Times he believes establishing a legal limit for pot is a necessity.
“If I don’t know how much marijuana I can consume and safely drive, how can I be held to a standard that it’s unsafe to drive?” he asked.
The problem with Washington’s “per se” limit is that a regular user of marijuana can have 5 nanograms of THC per milliliter of blood weeks after having consumed marijuana.
It doesn’t take a lawyer or a judge to tell you that the purpose of DUI laws, whether they’re for DUI of alcohol or DUI of marijuana, is to protect the driver and the public as a whole from impaired driving because that is what’s dangerous. And now that marijuana is legal in both California and Washington, as well as a number of other states, it is no different than alcohol. Like alcohol, a person should be free to consume something that they are legally allowed to consume without fear of being arrested for a DUI days or weeks later.
To have a per se limit for THC, as Washington does, would allow law enforcement to arrest someone for a DUI of marijuana weeks after they have consumed marijuana even though they are no longer impaired. It would be the same as if law enforcement arrested someone for a DUI of alcohol weeks after a night of drinking when they haven’t had a drop of alcohol since that night.
Should there be a per se legal limit for marijuana? Absolutely not, at least not until science can determine how impaired someone is when they’ve consumed marijuana.
A new California bill could see drivers under the age of 21 lose their driver’s license for a year if they are caught behind the wheel with marijuana in their system.
State Senator Jerry Hill (D-San Mateo), who has been behind several DUI-related bills, proposed the law so that the state would have the same “zero tolerance” policy for marijuana as it does for alcohol when the driver is under the age of 21.
California’s current “zero tolerance” law, under Vehicle Code section 23136, prohibits drivers under the age of 21 from having any alcohol in their systems. If a driver under the age of 21 tests positive for any alcohol in their system, their driver’s license will be suspended for one year through the DMV, but the matter is not considered criminal. Drivers under the age of 21 who have a blood alcohol content of 0.05 percent or higher, however, can be charged with Vehicle Code section 23140 which is an infraction with a $100 fine, a possible alcohol education class, and the one-year suspension through the DMV. Lastly, a driver under the age of 21 can also be charged with the standard DUI charges under Vehicle Code section 23152 that adults face when they are driving under the influence.
“This bill will save lives by making it illegal for drivers under age 21 to drive under the influence of marijuana, just like current law for alcohol,” Hill said in a statement.
It should be made clear, notwithstanding Hill’s statement, that the law would target the presence of marijuana in the driver’s system, not whether the underage driver was “under the influence” of marijuana.
Currently, there is no reliable way to determine exactly how intoxicated or under the influence someone is as a result of marijuana ingestion even though the psychoactive component of marijuana (delta-9-tetrahydrocannabinol or “THC”) might be present in a person system. A person could have smoked marijuana weeks ago and, while the intoxicating effects have long since passed, the THC may still be detectable in the person’s blood.
Hill foresees law enforcement officers being able to use oral swabs to determine if marijuana has been consumed recently. Although, local law enforcement has experimented with such devices recently, the LA Times reported that no such product has yet been approved for use by California law enforcement agencies.
“We don’t have a device in the field to measure impairment of cannabis,” Richard Desmond, an assistant chief for the California Highway Patrol, told legislators this week.
“[The bill] will do nothing to make the roads safer, nor to reduce youth drug abuse,” Dale Gieringer, director of California NORML (National Organization for the Reform of Marijuana Laws), told the San Francisco Chronicle. “What it will do is encourage cops to conduct random screenings of young drivers without any evidence of dangerous driving and grab their licenses for no good reason.”
Although the proposed law requires that law enforcement have reasonable suspicion that the driver might have marijuana in their system before they forcibly test them, I would not put it past some (maybe many) law enforcement officers to fabricate the reasonable suspicion so that they can conduct random screenings as Gieringer suggests.
Fortunately, the bill provides an exemption for drivers under 21 who use medical marijuana if the officer determines that they are not impaired.
As predicted, California passed Proposition 64, otherwise known as The Adult Use of Marijuana Act, on November 8th 2016. This made it legal for people to possess and use marijuana recreationally in California. However, it wasn’t until January 1st of this year that recreational marijuana could be sold to consumers.
So what does this mean for marijuana laws in California, including marijuana DUI laws?
Well, let’s start with the laws that aren’t related to a DUI of marijuana. Adults over the age of 21 can purchase and possess up to one ounce of marijuana and can grow up to six plants per household out of public view. People under the age of 18 can only purchase marijuana if they have their medical license.
Those who are able to possess marijuana cannot consume in public, even in areas where it is legal to smoke cigarettes. Some cities plan on allowing consumptions of marijuana at designated lounges. However, until then, smoking in public places can lead to fine of $100 to $250.
Just like alcohol, drivers cannot consume marijuana while driving. And any marijuana that is being transported in a car, must be in a sealed container in the trunk.
While marijuana laws have changed in many other respects, it is still illegal to drive while under the influence of marijuana.
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.
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.
Law makers could seek some sort of per se limit for how much THC can be in a person’s blood while driving. Several states have set a per se limit of five nanograms of THC per milliliter of blood. Colorado, has set a five nanogram per milliliter of blood limit to allow for the presumption that a person is “under the influence.” Unfortunately, current per se limits for THC, are an inaccurate measure of how impaired a person is.
Unlike alcohol, THC is fat soluble and remains in a user’s system long after they have ingested the marijuana, sometimes by several weeks. This creates the possibility of being arrested with five nanograms of THC in the system weeks after a person has smoked marijuana and well after the “high” is gone. Yet, because the THC is present, a person can either be arrested or, in Colorado, presumed to be under the influence.
As tech companies are scrambling to be the first to develop a device that will allow law enforcement to test “how high someone is,” Assemblyman, Tom Lackey, who is a former sergeant with the California Highway Patrol, has introduced Assembly Bill 6 which would allow tests using saliva samples taken from drivers suspected of driving under the influence. The test would let the officer know whether a driver has recently used a number of drugs including marijuana.
“The ballot initiative passed [in 2016] to legalize marijuana will result in more marijuana consumers on our state’s highways and roads,” Lackey said in a statement. “It is imperative that we invest in a broad spectrum of technologies and research to best identify marijuana-impaired drivers.”
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. In other words, a person can have traces of drug in their system without being impaired by that drug.
Marijuana, for example, can stay in a person’s system for weeks following the smoking or ingesting of the marijuana and well after the person was intoxicated or stoned. The purpose of DUI laws is to prevent impaired driving, not to punish sober and unintoxicated people merely because they ingested drugs at some point in the past.
Until we can establish a correlation with drugs including marijuana like we have with alcohol, namely the correlation between quantity and impairment, we shouldn’t be using pushing for laws like this.
Assembly Bill 6 will be brought up for a vote early this year.
Since it is perfectly legal to consume marijuana and have THC in your system, it is important to protect yourself from unwarranted DUI of marijuana charges. Do not say anything to the police. The 5th Amendment exists for a reason; use it. Politely refuse any field sobriety tests. Lastly, remember that you must submit to a chemical test after you have been arrested.
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)
This past week, I came across a video on Facebook of a news report on a Georgia police officer who had been arresting sober drivers on suspicion of driving under the influence of marijuana. After posting the video to my own Facebook page, I decided to do some research.
Apparently, Cobb County, Georgia police officer Tracy Carroll made headlines in May of this year when a number of his DUI of marijuana cases were dismissed after it was discovered that those he arrested were stone-cold sober.
The video of Carroll’s arrest of Katelyn Ebner can be seen here: http://interactive.tegna-media.com/video/embed/embed.html?id=2594976&type=video&title=RAW%20-%20Katelyn%20Ebner%20dashcam&site=85&playerid=6918249996581&dfpid=32805352&dfpposition=Video_prestream_external%C2%A7ion=home
Ebner not only spent the night in jail, but spent thousands of dollars trying to prove that she was innocent even though a blood test revealed that she did not have any illegal substances in her system.
Carroll, a “drug recognition expert,” can be seen and heard having the following conversation with Ebner:
Officer Carrol: “I’m going to ask you a question, okay? When was the last time you smoked marijuana?”
Ebner: “Oh, I don’t do that. I can give you a drug test right now.”
Officer Carroll: “You don’t smoke marijuana?”
Ebner: “I do not, no.”
Officer Carroll: “Okay. Well, you’re showing me indicators that you have been smoking marijuana, okay?”
I wonder what exactly those indicators were that Officer Carroll had to go through such intensive training on to identify.
The International Association of the Chiefs of Police give the title of “drug recognition expert” to officers who have completed training on being able to identify when a person is under the influence of drugs based solely on their observations.
Officer Carroll’s not-so-accurate crystal ball also landed Princess Mbamara in jail on suspicion of driving under the influence of marijuana when, in fact, she too was sober.
Mbamara’s arrest can be seen here: http://interactive.tegna-media.com/video/embed/embed.html?id=2594904&type=video&title=RAW%20-%20Princess%20Mbamara%20dashcam&site=85&playerid=6918249996581&dfpid=32805352&dfpposition=Video_prestream_external%C2%A7ion=home
Princess Mbamara: “You’re arresting me because you think I smoke marijuana?”
Officer Carroll: “I think you’re impaired by cannabis, yes, ma’am.”
Princess Mbamara: “Sir, I don’t smoke weed! Is there a way you can test me right now?”
“I remember my lawyer trying to talk about a deal…I was like, ‘I’m not taking a deal. I didn’t do anything! I want more than just a deal – I want more than just a dismissal; I want my life back. Can you reverse time? If you can go back in time, then that’s what I really want,’” said Mbamara.
If you are as infuriated as I was when I watched these videos, you’ll be even more infuriated to know that Mothers Against Drunk Driving (MADD) actually awarded Carroll and other officers for the number of DUI arrests they made. Forget about the fact that a number of Carroll’s arrestees were, in fact, innocent. Who knows how many others weren’t as lucky as Ebner or Mbamara. An arrest means nothing without a conviction. Remember that old phrase, “innocent until proven guilty?” MADD doesn’t care about that as they continue to incentivize officers arresting people who may not actually be driving under the influence.
And let’s go back to that “training” to become an “drug recognition expert.” Clearly, it’s a load of expletive, notwithstanding Cobb County’s outrageous claim that the training makes the officer’s determination more reliable than a blood or urine test. Let’s be honest, the officer’s “determination” is no more than a hunch.
Let me be perfectly clear: An officer’s hunch that a person is under the influence of drugs does not amount to the legally required probable cause needed to make an arrest. Arresting someone because of an officer’s hunch is an abuse of power.