Tag Archives: Marijuana DUI
Pennsylvania, which has legalized medical marijuana, has introduced a bill that would exempt medical marijuana users from the state’s arbitrary per se marijuana DUI law.
Although Pennsylvania legalized medical marijuana in 2016, with dispensaries opening up in the state in 2018, laws still remain on the books that would arbitrarily punish medical marijuana users merely for having THC in their system, even though they are no longer “high.” The new bill aims to close that loophole.
Prior to Pennsylvania’s legalization of marijuana for medical purposes, it was illegal to have any THC in a driver’s system while driving. At the time, the law did not conflict with itself because it was illegal to have any THC in the system because marijuana use, as a whole, was illegal. Thus, it did not matter whether a driver was still high or not; if they had THC in their system, it was illegal because all marijuana use was illegal.
Since the state has now legalized medical marijuana, at a minimum, those laws cannot remain on the books. Otherwise, it is possible for a legal medical marijuana to be arrested, charged, and convicted of a DUI in the state even though they haven’t smoked in days, possibly even weeks, and are perfectly sober when pulled over for that DUI.
Unlike alcohol, the intoxicating chemical of marijuana, tetrahydrocannabinol or “THC,” can possibly stay in a person’s system for weeks. Also, unlike alcohol, THC levels do not necessarily correspond to how intoxicated or high a person is. Science suggests that when a person has a blood alcohol content of 0.08 percent, they typically are at a level of intoxication that would make it unsafe to drive. This is why it is illegal to drive while under the influence and with a 0.08 percent (0.05 in Utah). It is dangerous to society when people drive when they are under the influence, or when their blood alcohol content suggests that they are “under the influence.” No such scientific correlation exists between THC and degree of intoxication from marijuana use.
Therefore, when Pennsylvania legalized medical marijuana, it put every single user of medical marijuana at risk of an arbitrary DUI by not also updating its DUI laws. It was possible for a cancer patient to smoke marijuana on Monday, become sober by Tuesday, remain sober for the rest of the week, and then get arrested for a DUI on Sunday simply because they still had THC in their system (as a result of taking prescribed medicine for cancer!).
Pennsylvania’s new law would require police and prosecutors to prove that a medical marijuana user was actually impaired while driving rather than merely proving that the person had used marijuana sometime in the past.
“We need to ensure that the legal use of this medicine does not give rise to a criminal conviction,” state Sen. Camera Bartolotta (R), who introduced the legislation, said in a statement about her bill. “Patients fought tooth and nail for years to see the use of medical cannabis legalized to treat a variety of terrible health conditions. They should have the peace of mind to know that they will not be punished later for using their prescriptions responsibly.”
Although some states still have per se limit laws for THC, like they do with alcohol (0.08% BAC in all states except Utah where it is 0.05%), a 2019 study, published in the journal Addiction by a team of Canadian researchers, found that drivers who had 2-5 nanograms of THC per milliliter of blood (the level of some states’ per se laws) were no more likely to cause a crash than people who had not consumed marijuana.
“Given the very serious consequences of a DUI conviction, my legislation will provide critical protections for medical cannabis patients by ensuring responsible use of their legal medicine does not give rise to a criminal conviction,” said Bartolotta.
My response: It’s about time. Until states can figure out a way link THC levels (or any other quantifiable measure) with intoxication, per se laws DUI laws for marijuana usage in states that have legalized it are unconstitutional.
The expansion of legalized marijuana use and the changing marijuana laws are wreaking havoc on what law enforcement consider probable cause and the justification for certain searches.
The Fourth Amendment of the United States Constitution states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”
Simply put, if you expect it to be private, cops must get a warrant to search it. And in order to get the warrant, they need reasonable and trustworthy facts that they’re going to find illegal.
Though there are exceptions to the need for a warrant, one of which includes the “automobile exception.” If an officer has probable cause to believe that a vehicle contains illegal or is engaged in illegal activity, they need not get a warrant to search it.
For years, officers claimed, and as became the standard, that the distinct smell of marijuana is what provided the officers the probable cause needed to search a vehicle without a warrant.
But what about when a perfectly sober person drives a passenger who smells like marijuana because they use it for, say, medical purposes? In other words, if it now commonplace that passengers, or even drivers, can smell like marijuana (since it is legal), can we continue to allow cops to use it as justification to search without a warrant?
In one Pennsylvania court case, a judge made the correct ruling that the state troopers lacked probable cause to search the car of the defendant. The defendant had been sitting in the passenger seat while his wife had been driving the vehicle. When she failed to properly stop at a railroad overpass, officers pulled them over and then was able to “smell the odor of both burnt and raw marijuana through the open window of the vehicle.” The defendant was a medical marijuana card holder and showed it to the police. Despite this, the officers claimed that they still had the right to search the vehicle.
However, the court judge ruled that the troopers did not have further cause to search his vehicle because he produced his card at the time of the stop. Thus, she determined the subsequent search of his vehicle to be unlawful and that all evidence collected from the vehicle search should be suppressed. You can read more about the case through this link: https://assets.documentcloud.org/documents/6246965/Commonwealth-of-PA-vs-Timothy-O-Barr.pdf
In another case, a Maryland officers searched a vehicle based on the smell of marijuana. They found a joint containing less than 10 grams of marijuana, a civil offense. The officers then arrested the defendant at the scene and searched his person, which resulted in the discovery of cocaine in his pocket. Although the vehicle search was permitted, the judge decided that there was no further reasonable cause for the officers to arrest and search his person. According to the Maryland Court of Appeals, “this is based on the heightened expectation of privacy one enjoys in his or her person as compared to the diminished expectation of privacy one has in an automobile.”
Alongside marijuana, in 2018 the United States government passed the Farm Bill which federally legalized hemp production, raising further concerns regarding this issue. The smell of marijuana and hemp and nearly identical.
In some states, such as Florida, prosecutors are pushing for a new “odor-plus” standard where the smell of marijuana may still be used as cause, but only as one factor out of many in determining probable cause.
The judicial system’s acknowledgement that times are changing is promising. However, let’s hope that the wheels of justice don’t spin so slow, as they unfortunately often do, that it can’t keep up with what we know to be correct approach to marijuana.
January 1st typically marks a day when new laws take effect. This year, Illinois saw recreational marijuana become legal in some parts of its state.
In preparation for the effects of marijuana being more readily available for some users, Mayor Lightfoot and the Chicago Department of Public Health announced what they called “Cannabis Facts Chicago,” a public service campaign that includes tips and precautionary information targeted at those who plan on consuming recreational marijuana.
With California having been recreational since late 2016, “Cannabis Facts Chicago” serves as a reminder that, while legal, there are some inherent dangers in marijuana use, including those which might affect someone’s ability to safely operate a vehicle.
Some health and safety tips highlighted are as follows:
- Protect Your Brain: The legal age for purchase and use of cannabis products at licensed dispensaries is 21 years of age, but studies have shown that the brain continues to develop until age 25. Heavy use, especially by young people, may impair brain development, short term memory, and even intelligence.
- Know Your Dose: Cannabis affects everyone differently. With different strains and a much wider array of products available on the market now, it may be difficult to determine the potency of each. Over-consumption can cause any number of symptoms, including but not limited to hallucinations, confusion, poor judgement, panic attacks, nausea, and vomiting. “Go slow and know your limits.”
- Avoid Frequent Use: Daily use, especially in high does, have been associated with and increased risk of psychosis.
- Don’t Consume if Pregnant or Breastfeeding: THC can be transferred to a baby through the placenta or breast milk so there is no safe amount when pregnant or breast feeding.
- Potential for Addiction: Studies have shown that addiction is more likely when cannabis use begins early.
- Don’t Drive While High: Not only are there potential dangers to yourself and others if you drive high, it is also illegal. Even having an open container of cannabis is illegal, even if you are a passenger.
- Keep it Safe: With the market for edibles having grown, cannabis comes in innocuous looking forms like candy or chocolate. Make sure that the only person using your stash is you. Unintentional consumption by children or pets can be dangerous so keep your stash locked and away from their reach. If you think a child has consumed cannabis, contact 911 and the Poison Control immediately.
- Stay away from Synthetic Cannabinoids: Not only are synthetic cannabinoids illegal in the state of Illinois, but they are also considered a health risk. This man-made chemical lacks regulation so products out on the market may not be as reliable as they seem.
According to the press release, “As the City readies rules around possession and consumption, and looks to adopt policies that ensure social equity, it also wants to reduce potential harms and protect youth, who are more susceptible to the negative health consequences of overuse, as their brains and bodies are still developing. In addition to the fact that use of cannabis is illegal for those under 21, it is important for youth and all users to consider that products today are much more potent than in the past.”
Although many states have started to legalize the use of recreational cannabis, some still continue to oppose. We have previously covered the difficulties of how to effectively and accurately measure or even quantify impairment with THC levels (see Marijuana Breath Detector). And yet, there are many who refuse to see the importance in exacting the correlation between THC and impairment, and what it means for drivers who may occasionally partake.
Utah State Representative Steve Waldrip (R- Eden), is one of those people. His plan is to introduce a bill that would presume impairment in DUI cases when one has reached or exceeded a specific level of THC in their blood, and “simply mirror what happens with alcohol.” He feels that it is unfair to treat marijuana intoxication as a lesser offense than in the case of intoxication with alcohol. However, his view seems to ignore the fundamental differences between the two substances. In a previous article, we covered the difference between alcohol which is water soluble and THC (tetrahydrocannabinol) which is fat soluble and how that affects levels found the blood stream, as well as how that affects the determination of impairment. His approach would completely ignore the scientific differences of these two substances and create a double standard in addition to the already unfair legal standard.
Waldrip’s reaction was mainly based on an accident where a driver, who tested positive for THC, hit a pedestrian on a highway and now faces misdemeanor charges. As a misdemeanor, the charge is punishable by up to six months in jail. Waldrip and the victim’s family felt that the penalty for the charge was too lenient.
According to the police report for the accident, the driver, though tested positive for THC, was driving under the speed limit of 50 mph at the time of the accident, stopped quickly, and attempted to aid. Under current Utah law, when a crash results in a serious injury or death, the offense can be charged as a felony. In this case, due to the contents of the police report, prosecutors were not able to prove impairment as the law requires evidence of impairment beyond blood test results. This was also combined with the fact that the pedestrian was found to have been under the influence of alcohol at the time of the crash with a blood alcohol content of 0.21 percent, over four times the legal limit in Utah.
Waldrip’s argument seems to be a double standard in how alcohol and marijuana are treated, and wants to do away with the impairment standard, ignoring the fact that driving with “any measurable controlled substance or metabolite of a controlled substance” in your blood is a Class B misdemeanor. Given that THC metabolizes much slower than alcohol, this current law is already unfairly skewed for cannabis users. He also conveniently ignores the fact that there are other elements of the current law that can convict without evidence of impairment. Misdemeanor DUI convictions may also trigger, upon a first offense, suspension of the driver’s license and mandatory attendance in an education program; for a second offense, minimum jail time or community service increases from two days to 10 days; and a third offense is a felony. All of these can be triggered without additional evidence of impairment. As an article by Reason pointed out, “That is the real double standard.”
Questions regarding Colorado’s ability to keep up with the flow of DUI blood tests have come to light since the state’s major policy change that could potentially jeopardize cases.
As of July 1, 2019, rather than sending out their blood tests to private labs, the Colorado Bureau of Investigations (CBI) has taken on the workload themselves in their attempt to cut back on spending. Private lab testing costs, at minimum $300, per case. This switch was in attempt to ease financial burdens on the smaller law enforcement agencies and to better collect data regarding marijuana use among motorists. The hope was that the state would be able to gather more information since the smaller agencies who refrained from sending in samples previously due to the cost, would be more likely to send in their data.
In addition to the fear that the CBI will not be able to handle the overflow that would result from the change in policy, there is also concern regarding the effects on the private labs they took work away from.
Back in 2013, when the Colorado Department of Public Health and Environment closed its labs due to concerns regarding accuracy, a small private lab called ChemaTox, made its way onto the market and has since handled thousands of cases for the state’s law enforcement. However, when CBI dropped its fees at the start of July, it hit ChemaTox hard. According to its owner Sarah Urfer, the business couldn’t keep up.
“It was never our intention to negatively impact a private business. I’m embarrassed and I’m responsible. Where we failed was to do the stakeholder outreach that I expect our agency to do and I should have done in this case to reach out to ChemaTox,” said John Camper, Director of the CBI.
The loss of business that Urfer and her 25 full-time employees suffered within weeks of the change was significant enough that she felt unable to rebuild, leading her to close within the month.
With one of the labs that handled the workload closed for good, all of the tests that were run by them fell onto the CBI.
As of October of last year, Camper announced that the CBI is doing a good job handling its workload and that they are still operating well within the time limits set for speedy trial requirements. However, it must also be noted that the state budgets that have been sent in by the CBI shows that, while they did not clock in any overtime during the months of June and July, the month of August reported that they worked nearly 160 hours of overtime. Camper has stated that he has no intention of asking the legislature for more funding to handle the workload that has already doubled over the last few months and that they still have open positions to fill that will help to keep the turnaround times low.
Prosecutors are still wary and have warned the CBI that, should the department become overwhelmed, they will have to resort to dropping cases because of the inability of the labs to present evidence that the prosecution needs to move forward. The prosecution uses test results for not only DUI cases, but also cases such as vehicular homicide and murder, and toxicology in its many forms are crucial to such cases. In the case of trial proceedings, the prosecution is also worried about the CBI’s ability to be able to provide experts available for testimony at trial.
Lastly, at the Joint Budget Committee in July, a point was made by State Representative Jonathan Singer (D-Longmont) when it was announced that the CBI would be running a full panel test on every DUI case sample that comes through its doors, regardless of whether or not the sample came in for just alcohol analysis. The reason for the full panel was to gather information about the effects of marijuana use throughout the state. Colorado’s current DUI law is not specific to alcohol or drugs, thus there is a grey area, but the CBI has admitted to the potential for challenges on the practice.
Singer questions the constitutionality of such actions. “If we’re looking for substances that weren’t the initiating or even the secondary reason for an arrest or a charge, are we wandering into any federal constitutional concerns about custody of evidence?”
That definitely sounds like something that could be a concern.