Category Archives: Drugged Driving
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.
I’ve posted in the past on the difficulties law enforcement faces in detecting impairment from marijuana while driving — both subjectively (symptoms, field sobriety tests and the officer’s opinion) and objectively (analysis of blood or other bodily substances). See, for example, Identifying and Proving DUI Marijuana ("Stoned Driving"), Can Breathalyzers Measure Marijuana?, New Efforts to Push Roadside DUI Marijuana Test and San Diego Begins Using Mouth Swabs to Detect Drugged Drivers. There is even disagreement among scientists as to how much marijuana must be ingested to become impaired, and how the metabolism (absorption and elimination) of marijuana functions in any individual — for example, how long the active metabolites remain in the blood. See How Much Does It Take to Impair Driving? and New Study: Minimal Impairment From Marijuana.
The following excerpts from a segment of a recent public radio presentation does an excellent job of laying out the difficulties in detecting marijuana impairment and measuring levels of active THC (delta-9-tetrahydrocannabinol) in the blood.
Scientists Still Seek a Reliable DUI Test for Marijuana
July 30, 2017. NPR – Despite the increasingly legal use of cannabis in many states, cops still don’t have the equivalent of a reliable alcohol breathalyzer or blood test — a chemically based way of estimating what the drug is doing in the brain. Though a blood test exists that can detect some of marijuana’s components, there is no widely accepted, standardized amount in the breath or blood that gives police or courts or anyone else a good sense of who is impaired…
A number of scientists nationally are working hard to create just such a chemical test and standard — something to replace the behavioral indicators that cops have to base their judgments on now…
Turns out it can be a lot harder to chemically determine from a blood or breath test that someone is high than to determine from such a test that they’re drunk.
Ethanol, the chemical in alcoholic drinks that dulls thinking and reflexes is small and dissolves in water. Because humans are mostly water, it gets distributed fairly quickly and easily throughout the body and is usually cleared within a matter of hours. But THC, the main chemical in cannabis that produces some of the same symptoms, dissolves in fat. That means the length of time it lingers in the body can differ from person to person even more than alcohol — influenced by things like gender, amount of body fat, frequency of use, and the method and type of cannabis product consumed.
In one study, researchers had 30 frequent marijuana users stay at a research facility for a month without any access to drugs of any sort and repeatedly tested their blood for evidence of cannabis.
"And it shocked everyone, including ourselves, that we could measure, in some of these individuals, THC in the blood for 30 days," says Marilyn Huestis, a toxicologist with the University of Maryland School of Medicine who recently retired from leading a lab at the National Institute on Drug Abuse.
The participants’ bodies had built up stores of THC that were continuing to slowly leech out, even though they had abstained from using marijuana for a full month. In some of those who regularly smoked large amounts of pot, researchers could measure blood THC above the 5-nanogram level for several days after they had stopped smoking.
Conversely, another study showed that people who weren’t regular consumers could smoke a joint right in front of researchers and yet show no evidence of cannabis in their blood.
So, in addition to being invasive and cumbersome, the blood test can be misleading and a poor indicator of whatever is happening in the brain…
The NPR segment went on to discuss the difficulties police officers have in judging whether a person who has consumed marijuana was impaired. After law enforcement training seminars involving volunteers who had smoked different amounts of marijuana, the program concluded:
Right now, these officer’s opinions loom large. If they decide you’re driving high, you’re going to jail. But at the end of the day, they’re just making educated guesses. Two different officers could watch the same person doing the same sobriety test and make different decisions on whether to arrest. In previous courses, officers had decided that a volunteer was impaired when in fact the volunteer hadn’t smoked at all.
So, just like the THC blood test, the judgments officers make can also yield false positives and negatives….
An increasing number of states are simply throwing up their hands and, in effect, deciding that actual impairment is not necessary: the crime is in driving with an arbitrary amount of THC in the blood — even if there is no actual impairment at all.
This follows what the federal government imposed on the states a few years ago: a new crime of driving with 0.08% blood-alcohol, to overcome the difficulties of having to prove the driver was actually impaired — despite the proven fact that many people are not impaired at that level or higher. In alcohol cases, however, it is at least possible to measure alcohol levels, and roughly determine absorption and elimination times.
But changing the crime of driving while impaired by marijuana to one of having an arbitrary amount in the system makes arrest and conviction much easier for police and prosecutors, right? And isn’t that the important thing?
The increase in DUI of drugs has led some to ask whether drugged drivers cause more fatal traffic collisions than drunk drivers. At least according to a new study, the answer is yes.
The Governors Highway Safety Association (GHSA) and the Foundation for Advancing Alcohol Responsibility, a nonprofit funded by alcohol distillers, released a report in April of this year that found in 2015, drivers killed in vehicle collisions were more likely to be under the influence of drugs than alcohol. This was the first recorded time where it is suggested that drugged driving is responsible for more traffic fatalities than drunk driving.
“Drug impaired driving is increasing,” said Jim Hedlund a private consultant from Ithaca, New York who conducted the study for the Governors Highway Safety Association. “We have new data that show drugs are more prevalent to drivers than alcohol is for the first time.”
The study showed that 43 percent of drivers tested in fatal vehicle collisions in the United States had used either a legal or illegal drug. According to the study, 37 percent of drivers tested had a blood alcohol content above the legal limit of 0.08 percent.
Marijuana was the most common drug detected. 9.3 percent of drivers who had their blood tested had amphetamines in their system and in many cases, drivers had multiple drugs in their system.
While the result of the study may be accurate, those who are suggesting that the results indicate that drugged driving causes more traffic fatalities than drunk driving is somewhat misleading.
The presence of alcohol in a person’s system does not necessarily mean that they are under the influence. However, the legislature has created a per se blood alcohol content limit of 0.08 because science has shown that the mental or physical abilities of those with a blood alcohol content of 0.08 are likely so impaired that they can no longer operate a vehicle with the caution of a sober person, using ordinary case, under similar circumstances.
Thus, while the study only tested whether drivers had a 0.08 percent blood alcohol content or higher and not actual impairment, we know that if the driver had a blood alcohol content of 0.08 percent or higher, they were also likely impaired.
Therefore, to conclude that more drugged drivers cause fatal vehicle collisions than drunk drivers is inaccurate. In other words, we cannot compare driving statistics of those with a blood alcohol content of 0.08 percent and those with drugs in their system.
Furthermore, drugs such as marijuana can stay in a person’s system for far longer than alcohol, sometimes for up to weeks at a time. Therefore, the likelihood of drugs being present in a person’s system, whether they used recently or not, is far higher than the likelihood of alcohol being present in a person’s system.
For once, Mothers Against Drunk Driving (MADD) and I actually agree on something.
Like myself, MADD officials questioned the methodology of the results, noting that there is no scientifically agreed level of impairment with drugs such as marijuana.
Another of MADD’s concerns is that the study is leading people to believe that the country is doing better than we have been in terms of drunk driving.
“There is no way you can say drugs have overtaken alcohol as the biggest killer on the highway,” said J.T. Griffin, chief government affairs officer at MADD. “The data is not anywhere close to being in a way that would suggest that … We’re doing a lot of good things on drunk driving, but the public needs to understand this problem is not solved.”
According to NORML, with whom I tend to agree, the study merely reflects the increased detection of drugs and alcohol, but does not reflect any direct connection to fatal vehicle collisions.
I’ve been writing for some time now that roadside drug tests for suspected DUI of drugs stops are not far off. The increase in drug usage and the growing acceptance of marijuana has law enforcement agencies and law makers clamoring for a device that can quickly and accurately test whether drivers are under the influence of drugs. While current devices are not quite yet capable of telling law enforcement how intoxicated a driver might be, they can say whether a driver has drugs in their system. And San Diego became the latest city to use such devices roadside.
Last week, San Diego police began using roadside oral swabs to test drivers for the presence of marijuana, cocaine, methamphetamine, amphetamine, methadone, opiates, and benzodiazepines. The oral swabs cannot, however, test the amount of drugs in the driver’s system nor can it test for the driver’s level of intoxication.
The inability to test for quantity of drug or intoxication is legally important because, under California law, a person can only be arrested, charged, and convicted of a California DUI if they are “under the influence of a drug.” This means that a person’s physical or mental disabilities are impaired to such a degree that they no longer have the ability to drive with the caution characteristic or a sober person of ordinary prudence under the same or similar circumstances.
With the swab test only able to indicate the presence of one of the drugs listed above, a prosecutor must still prove that a person was not driving with the care of that of a sober person. This is done with officer testimony of poor driving patterns, failure of field sobriety tests, and visual symptoms of drug impairment.
Although many, including Mothers Against Drunk Driving, often forget, the mere presence of drugs in a driver’s system does not necessarily mean that they are driving under the influence. Tetrahydrocannabinol (THC), the active component in marijuana, for example, can stay in a person’s system for up to several weeks after the smoking or ingestion of marijuana. While, the THC may still be present, the person may no longer be “under the influence.”
San Diego began using the oral swab test, called Dräger 5000, after officials met with authorities in Colorado which legalized recreational marijuana in 2014.
Under San Diego protocol, law enforcement will only request the oral swab after they suspect that the driver might be under the influence of a drug. And before that, the officer must have probable cause to even stop the driver in the first place.
Like the preliminary screening alcohol test (PAS) test in DUI of alcohol cases, the oral swab test is also optional. And like the PAS test, it is never suggested that a driver voluntarily submit to the test. Never give law enforcement and prosecutors any more information than they already have.
Only after a person is arrested must they submit to a chemical test and if law enforcement suspects that a person was driving under the influence of a drug, they’ll have to take a blood test.
According to a study by the California Office of Traffic Safety, 38 percent of drivers killed in vehicle collisions during 2014 tested positive for either legal or illegal drugs. This is up six percent from 2013. While this may seem like a high number, testing positive does not necessarily mean that those drivers were actually under the influence and impaired by a drug.
Although drugged driving is and will always be a problem, we can’t continue to arrest people for driving for the mere presence of drugs in their system because presence does not mean impairment.
With the legalization of recreational marijuana in California, lawmakers are pushing efforts to pass new legislation regarding marijuana, particularly when it comes driving after marijuana use. Tom Lackey (R-Palmdale), who is no stranger to introducing anti-DUI laws in California, has introduced a bill that would create a drugged driving taskforce under the supervision of the Commissioner of the California Highway Patrol.
“The bill, AB-6, is a reasonable approach forward to address our fight against drugged driving,” Lackey told the Los Angeles Times. “The urgency of this should be very clear to all of us.”
The bill, which was proposed by the California Police Chiefs Association and introduced by Lackey, if approved, would add a completely new section to the current California Vehicle Code.
The Legislative Counsel’s Digest for the bill says the following:
“This bill would require the commissioner to appoint, and serve as the chair of, a drugged driving task force, with specified membership, to develop recommendations for best practices, protocols, proposed legislation, and other policies that will address the issue of driving under the influence of drugs, including prescription drugs. The bill would also require the task force to examine the use of technology, including field testing technologies, to identify drivers under the influence of drugs, and would authorize the task force to conduct pilot programs using those technologies. The bill would require the task force to report to the Legislature its policy recommendations and the steps that state agencies are taking regarding drugged driving.”
The task force would include representatives from local law enforcement, prosecutors, various representatives from the marijuana industry, representatives from the pharmaceutical industry, representatives from the Office of Traffic Safety, representatives from the National Highway Traffic Safety Association, and licensed physicians.
The Assembly Public Safety Committee unanimously recommended the bill after a hearing in which Karen Smith, a teacher from Antelope Valley, provided emotional testimony about how her husband had been killed a driver who was under the influence of marijuana.
“He was just 56 years old. We had been married for 34 years,” said Smith. “It was all wiped out in just one second by a person who chose to drive under the influence of THC.”
There’s no question that marijuana affects driving ability. Exactly how and to what degree, is up for debate. What is certain however, is that there is a very important difference between being under the influence of marijuana and having THC in your system, and the task force, if AB-6 passes, had better understand the difference.
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.
The same cannot be said about the intoxicating effects of marijuana use and the amount of THC in a person’s blood. 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. Therefore, 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.