Category Archives: Drugged Driving
As I’ve mentioned in past posts, there are a number of problems with trying to determine whether a driver is under the influence of marijuana. See, for example, Marijuana-Impaired Driving: A Prosecutor’s Nightmare?, New Study: Minimal Driving Impairment From Marijuana, California Proposes New Law to Allow Roadside Marijuana Tests, Is a Marijuana Breathalyzer in the Offing? Primary among these problems are:
1. Marijuana cannot be detected or measured on a breath machine. It can be measured with blood tests, but there is almost always a delay — often hours — in obtaining a blood sample. Result: due to continuing metabolism of marijuana in the body, the level at the time of testing may be significantly higher or lower than at the time of driving
2. Unlike alcohol which dissipates after several hours, THC (the active ingredient in marijuana) can stay in a person’s system for days or even weeks after smoking or eating. Even though they are no longer affecting the driver, they will be still detected and reported as marijuana in the blood.
3. There are no recognized scientific studies establishing at what level of THC in the blood a person’s driving ability is impaired.
A solution to one of these problems would be the development of a breath machine which could accurately measure marijuana on the breath — particularly if this could be done quickly at the scene of the arrest. But no such device exists….yet:
Marijuana Breathalyzers to Test California Pot Users for Pot Use
Los Angeles, CA. Sept. 14 – An Oakland-based company has developed a marijuana breathalyzer for distribution across police stations in the U.S. to begin a nationwide test to see if they can monitor people operating motor vehicles while under the influence of pot, and drivers in California were among the first to be tested…
The marijuana breathalyzer – which had some help in development by the University of California’s chemistry department – is able to detect THC on people’s breath after they’ve consumed edible pot products as well as alcohol.
Hound Labs plans to roll their product out nationwide upon further testing to validate the technology’s results.
Until it’s perfected, police will have to continue relying on testing saliva, urine, and blood to measure marijuana in the system, which can show the presence of drugs days after the user is actually under the influence.
Some police have already shown their support for the breathalyzer, including Lompoc Police Chief Patrick Walsh, who says he plans on issuing the device to at least six of his departments over the next six months…
Ok, so maybe they will be able to detect and even measure the amount of THC in the blood from testing the breath. But how does this solve the problem of inactive THC still remaining in the blood from smoking days or weeks earlier? And what good is it to know the amount of THC in the breath if there is still no scientific evidence of the amount necessary to impair driving ability?
In April of 2015 I wrote about Assembly Bill 1356, written by Assemblyman Tom Lackey from Palmdale, California, which would have allowed 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.
That bill however, failed to pass the Assembly Public Safety Committee the following May because of reliability concerns.
However, with the passing of Proposition 64 which allowed the use of recreational marijuana in California, Lackey who is a former sergeant with the California Highway Patrol, has introduced a new bill similar to that of the failed AB1356.
The newly proposed Assembly Bill 6 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 this year 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.”
The measure is supported by Chief Ken Corney, president of the California Police Chiefs Assn.
“Our federal partners have demonstrated the efficacy of oral fluid testing, and we look forward to utilizing the technology at a state level,” Corney said in a statement.
While the current devices referred to by Corney tests for the presence of drugs, it does not test for drug quantity nor impairment of the driver.
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.
It is unclear how the presence of a drug may affect the subsequent arrest or DUI case since presence doesn’t necessarily mean impairment. 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 next year.
A few weeks ago, I wrote about how California DUI law could be affected generally should voters pass Proposition 64 this coming November.
If you haven’t read it, here’s the gist:
If Prop. 64 is approved, California would legalize recreational marijuana this November 8th. As the sixth largest economy in the world and an already existing thriving medical marijuana market, it is estimated that the marijuana industry could become a $6 billion industry by 2020.
While THC is the psychoactive component of marijuana that is detected in cases of DUI of marijuana, there is no way to determine how impaired someone is regardless of how much THC is in their system Unlike alcohol, there is not an established correlation between THC and impairment. As a result, a number of companies are racing to create a roadside test to determine impairment of marijuana rather than just presence of THC.
If Prop. 64 passes, there are many more questions that need answering. One of these questions is whether we will see more marijuana-DUI traffic collisions.
The Los Angeles Times consulted with Beau Kilmer, senior researcher at RAND Corp. specializing in drug policy and co-author of the book “Marijuana Legalization” to ask the very same question.
The Los Angeles Times made mention of the fact that AAA announced last week that it was opposing efforts to legalize marijuana in California and Maine citing statistics showing an increase in marijuana related fatal collisions in Washington, a recreational marijuana state. While AAA opposed Prop. 64, it also conceded, “While the data analyzed for the study did not include enough information to determine which driver was at fault in a given crash.”
To this Kilmer responded, “The bulk of the research suggests that driving drunk is worse than driving stoned, but driving stoned is worse than driving sober. The research suggests that when people are under the influence of both marijuana and alcohol, it does increase the probability of getting into a crash.”
But, he added, “If you are going to be objective about this and you really want to know how marijuana legalization is going to affect traffic safety, you don’t just look at the number of people in crashes who are testing positive for THC. You want to look at total crashes and total accidents. It might be the case that yeah, more people are driving stoned, but some of them are now less likely to drive drunk.”
Kilmer added that the studies are not definitive.
Kilmer’s statements are correct in that, if we are to be objective about this, we can’t just look at AAA’s cited statistic. Just because a person has THC in their system at the time of a collision does not mean that the person is driving under the influence. What’s more, it may be that the amount DUI of alcohol related collisions have reduced since the legalization of recreational marijuana in Washington.
Law enforcement continues to be frustrated in trying to prove that a possibly impaired driver is under the influence of marijuana (so-called “stoned driving”).
As recent posts on this blog have pointed out, the simple fact is that there is no scientifically valid method for measuring marijuana and its effect. The current method involves drawing a blood sample from the person after the suspect is arrested and analyzing it for marijuana — or, more accurately, for the presence and amounts of the active ingredient, THC (tetrahydrocannabinol), in the blood.
But there are two primary problems with this. First, the marijuana measured may well be inactive and still present in the body from ingestion days or even weeks earlier. Second, there is no generally accepted scientific evidence as to what levels of THC can cause sufficient impairment to the ability to safely operate a motor vehicle. See, for example, my previous post Identifying and Proving DUI Marijuana (“Stoned Driving”).
The latest attempts for a quick-and-easy way to prove “stoned driving” involve developing a “marijuana breathalyzer” — a device that will test for THC on the breath, as is done for alcohol with current breathalyzers. To date, these have proven inaccurate and unreliable. See previous posts Can Breathalyzers Measure Marijuana? and Is a Marijuana Breathalyzer in the Offing?
Today, a company claims to have finally developed the long-hoped-for answer to law enforcement’s dilemma…
Pot Breathalyzer Hits the Street
U.S. News & World Report. Sept. 14 – American police have for the first time used a marijuana breathalyzer to evaluate impaired drivers, the company behind the pioneering device declared Tuesday, saying it separately confirmed its breath test can detect recent consumption of marijuana-infused food.
The two apparent firsts allow Hound Labs to move forward with plans to widely distribute its technology to law enforcement in the first half of next year, says CEO Mike Lynn. Lynn, an emergency room doctor in Oakland, California, also is a reserve officer with the Alameda County Sheriff’s Office and he helped pull over drivers in the initial field tests, none of whom were arrested after voluntarily breathing into the handheld contraption…
The technology, if all goes according to plan, will be welcomed by both sides of the pot legalization debate, those who fear drugged drivers and reformers outraged that pot users in some jurisdictions are subjectively detained and forced to undergo blood tests that don’t prove impairment, especially in frequent users….
There’s a two-part testing challenge now: confirming with laboratory equipment that the device gives accurate results, and then correlating specific measurements (given in picograms of THC) with levels of intoxication, a challenge that will include sending stoned drivers on an obstacle course — something already done informally….
Hound Labs, of course, isn’t the only company that sees an opening as U.S. states increasingly regulate sales of marijuana for recreational or medical use, but it is ahead of the curve, beating another company aiming to introduce a marijuana breathalyzer, Cannabix Technologies….
Hmmmm…..Might there a conflict of interest when the CEO is a reserve police officer involved in field testing his own product? And how can an indirect analysis of THC on the breath done in the field be more reliable and accurate than directly analyzing it in the blood in a laboratory?
Profit and politics has always trumped science and truth in the DUI field. See my post DUI Laws Overrule Scientific Truth.
It would not be a surprise to many if California was the next state to legalize recreational marijuana with Proposition 64. If approved, California would follow the heels of Alaska, Oregon, Washington, Colorado, and the District of Columbia. California is among five states to vote on the legalization of recreational marijuana this November 8th. As the sixth largest economy in the world and an already existing thriving medical marijuana market, it is estimated that the marijuana industry could become a $6 billion industry by 2020.
In 2010, voters failed to pass Proposition 19, which would have legalized recreational marijuana, by a 53.5% majority of vote. So do California voters have the same sentiment six years later? Current polls show support for the passing of Proposition 64 by 60% or more, making it the initiative most likely to pass on the ballot.
Since Proposition 64 is likely to pass, it would be appropriate to discuss how it might affect California DUIs and California DUI law.
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.
If proposition 64 is passed, 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, however, 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.
In June of last year, Cannabix Technologies Inc., a Vancouver based company announced the testing of a prototype marijuana breathalyzer. The company says that the breathalyzer will be able to test whether a person has ingested alcohol within the past two hours. Although the machine will not test for a quantitative amount of THC, it will provide a timeframe for marijuana usage, which is a better indicator of impairment that nanograms of THC in a person’s blood.
In April of this year, the California state legislature awarded UCSD’s cannabis research center $1.8 million to study THC impairment and develop an accurate roadside test for marijuana impairment.
While an accurate test for marijuana impairment may be in the offing, nothing yet exists to provide lawmakers with the ability to create an accurate per se level. Until that happens, which may be before pot shops open up in January of 2018 if Proposition 64 is passed, law enforcement and prosecutors will have to continue to rely on California’s flimsy standard of “under the influence.”