Is a Marijuana Breathalyzer in the Offing?

Monday, September 14th, 2015

Many are saying that California will be the next state in the Union to legalize recreational marijuana. If their predictions are correct, that would make California the sixth state to do so. Currently, Washington, Colorado, Alaska, Oregon, and Washington D.C. have all legalized recreational marijuana. Although California has not yet legalized recreational marijuana, it has decriminalized marijuana and allows the use of medical marijuana for medical purposes.

With California and other states on the cusp of legalization of recreational marijuana, law enforcement agencies are clamoring for technology that will help them determine how stoned someone is for purposes of driving under the influence.

In June of this year, Cannabix Technologies Inc., a company based out of Vancouver, issued an update on what it hopes to be the first widely used marijuana breathalyzer. According to Cannabix’s website, a prototype has been developed and is currently undergoing testing. According to the company’s founder, retired Canadian police officer Kal Malhi, the device will be able to detect the use of marijuana within two hours.

Lifeloc, a Colorado-based company which already makes and distributes alcohol breathalyzers is also in the race to develop a marijuana breathalyzer.

"I think the first breathalyzer on the market will be a simple ‘yes’ or ‘no’ for the presence of THC at the time of the test, and in that sense it won’t provide a quantitative evidential measure," Barry Knott, the chief executive of Lifeloc, told Reuters.

If developed, the new marijuana breathalyzer would replace the rather inefficient blood test to determine how much THC (tetrahydrocannabinol), the active component of marijuana, is in a person’s system.

Many states that have legalized marijuana either recreationally or medically have set a "per se" limit, or bright line rule on how much THC can be in a person’s system while driving ranging from 0 to 5 nanograms per milliliter of blood.

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.

So can the same be said for nanograms of THC per milliliter of blood? Unfortunately, no.

Notwithstanding "per se" THC limits in many states, the correlation between nanograms of THC per milliliter of blood and marijuana intoxication is extremely weak.

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. Alcohol, on the other hand, is water soluble and dissipates at a rate of about 0.015 percent per hour. This means that, depending on how much alcohol someone drank, a person can sober up within hours.

This means that 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.

It is unclear whether the marijuana breathalyzers currently being developed will quantify how much THC is in a person’s system. Not that it matters. The amount of THC in a person’s system has nothing to do with how intoxicated they are and, consequently, how much of a danger they are to the roads.

Until a marijuana breathalyzer can determine how intoxicated someone is, we run the risk of arresting sober people for DUI. 


California Proposes New Law to Allow Roadside Marijuana Test

Monday, April 27th, 2015

Assembly Bill 1356 has made its way to Capitol Hill and, if passed, would allow 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 in a matter of minutes.

“It’s very clear that the usage of marijuana is becoming more and more common,” said Assemblyman Tom Lackey from Palmdale, California, who proposed the law.

The law would expand California’s current implied consent law to “provide that a person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or oral fluids for the purpose of determining the drug content of his or her blood or oral fluids.”

Currently, if law enforcement want to test for the presence of drugs in a driver’s system following the lawful arrest of that driver, they need to withdraw blood which could take hours.

According to CBS San Francisco, officers would be able to use a portable drug detection device called Alere™ DDS®2 that would allow law enforcement to perform a test on drivers’ oral fluids gathered from the gum line and cheeks. The swabbed fluid samples could provide results within five minutes according to the device’s developers.

"We’d be testing for marijuana, cocaine, opiates, amphetamines, methamphetamines and benzodiazepine," said Fred Delfino, spokesperson for Alere DDS 2, the company behind the new device.

You may recall from my previous posts that the Los Angeles Police Department had been given a federal grant to test these devices.

“The number of drugged drivers is increasing rapidly, and those of us in law enforcement simply do not have the tools necessary to determine the level of impairment on anything other than alcohol,” said Ron Lawrence, chief of police for Rocklin. “If the legalization of marijuana is in our future, we in California law enforcement need to be prepared to deal with the roadways and safety precautions of tomorrow."

The problem is that the device does not test for impairment. It only tests for the presence of the drugs.

It has yet to be determined what amount of drugs found in a person’s system will constitute impairment. According to Lackey, that part of the bill has not yet been worked out.

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.

"I think that people want to have a clear-cut, black-and-white solution," says Mason Tvert, the communications director for the Marijuana Policy Project, a pro-legalization group. "They want a specific number that we can use to just say that this person is impaired or not. Unfortunately, it’s a little more of a gray area than that."

Unfortunately, Tvert is correct and that gray area can lead to sober drivers getting arrested for DUI of marijuana.

Tetrahydrocannabinol or THC is the active component of marijuana. Unlike alcohol which dissipates after several hours, THC can stay in a person’s system for weeks at a time and well after the person has smoked.

Simply put, the mere presence of THC in a person does not necessarily mean that the person is impaired and incapable of safely operating a vehicle and the new device, if AB1356 passes, could be used to prosecute sober drivers.


New Marijuana Study Skewed by the Media

Monday, October 13th, 2014


Have you seen the recent headlines, “Study Finds Marijuana as Addictive as Heroin” or “Marijuana Makes you Stupid.” I did and immediately asked myself, “Have we gone back in time?”

After reassuring myself that we hadn’t, in fact, gone back in time, I pulled up the study that prompted so many Reefer Madness-esque headlines.

Recently published in the latest volume of the journal, Addiction, the article is a review of the last 20 years of research on the health effects of marijuana. As it turns out, the study, authored by Wayne Hall, a drug advisor to the World Health Organization, is not telling us anything we don’t already know. Instead, the media has skewed and misquoted the findings to, surprise surprise, create an eye-catching headline.

Although the study found that marijuana use had no permanent effect on the IQ of people who use marijuana periodically or started using as adults, media alarmists chose to focus their attention on the one and only group of people whose IQ was affected by marijuana use. That group was “the small proportion of cannabis users who initiated in adolescence and persisted in daily use throughout their 20s and into their 30s.”

Is marijuana really as addicting as heroin as many of the headlines read? Let’s see what the article actually says. “The life-time risk of developing dependence among those who have ever used cannabis was estimated at 9% in the United States in the early 1990s as against 32% for nicotine, 23% for heroin, 17% for cocaine, 15% for alcohol and 11% for stimulants." Yes, you can become addicted to marijuana, just as you can become addicted to nearly anything, but the study makes it quite clear that it is significantly less than most drugs.

The study doesn’t say anything we don’t already know about marijuana’s effect on driving, namely that marijuana use doubles the risk of an automobile accident. According to the study, “…it was clear from laboratory studies that cannabis and THC produced dose-related impairments in reaction-time, information-processing, perceptual-motor coordination, motor performance, attention and tracking behaviour. This suggested that cannabis could potentially cause car crashes if users drove while intoxicated, but it was unclear whether in fact cannabis use did so. Studies in driving simulators suggested that cannabis-impaired drivers were aware of their impairment and compensated for these effects by slowing down and taking fewer risks. There were similar findings in the few studies on the effects of cannabis use on driving on the road…In summary, the epidemiological and laboratory evidence on the acute effects of cannabis suggests strongly that cannabis users who drive while intoxicated increase their risk of motor vehicle crashes 2–3 times as against 6–15 times for comparable intoxicating doses of alcohol.”

Other shocking revelations by the study:

Marijuana use has dramatically increased in recent times, yet there has been no increase in the rates of psychosis…despite what the headlines say.

You actually can overdose on THC, the active compound in marijuana. Based on animal studies, the estimated fatal dose of THC is between 15 and 70 grams. Let’s put this in perspective. The average joint has about 0.06 grams of THC. So based on animal studies, it is estimated that someone can die if they smoke between 238 and 1,113 joints in a day.

Pregnant women should not use marijuana. Big surprise. The study found that there is an evidentiary link between marijuana use during pregnancy and cognitive problems of the child later in life. However, “uncertainty remains because of the small number of studies, the small samples of women in each and the researchers’ limited ability to control for the confounding effects of other drug use during pregnancy, maternal drug use post-birth and poor parenting.”

Don’t believe everything the headlines tell you.

Marijuana Breathalyzer in the Offing?

Monday, June 23rd, 2014

With marijuana legalization making as much progress as it has in the last few years, it was only a matter of time before someone developed a marijuana breathalyzer. It seems a former Royal Canadian Mounted Police is close to doing exactly that.

The new device called the Cannabix was developed by Kal Malhi and will be able to detect whether a person has smoked marijuana in the last two hours. The Cannabix supposedly works in a manner similar to that of traditional breathalyzers used by law enforcement to determine the blood alcohol content of drivers.

"People are becoming very afraid to drink and drive nowadays because they feel that they will get caught and charged, but they’re not afraid to drug and drive because they don't feel that law enforcement will do anything about it," said Malhi.

Although the Cannabix is pending a patent and still has further field testing to undergo, it’s a step in the direction long awaited by law enforcement: a bright line test for DUI of marijuana.

States which have legalized recreational marijuana and some states which have legalized medical marijuana have established a per se impairment level at 5 nanograms of THC per milliliter of blood. Ohio and Nevada have established a per se limit of 2 nanograms of THC per milliliter of blood. Some states which allow medical marijuana have established a zero tolerance rule.

You’ve heard me hoot and holler about the flaws of such standards. THC can stay in a person’s system for over a month. A month after smoking marijuana, the “high” is long gone but, unfortunately, the THC is not. Yet these standards allow officers to arrest someone even though they are no long impaired.

As promising as something like the Cannabix looks to law enforcement, it too does not determine how impaired a person is after smoking. Sure, proximity in time to the smoking of marijuana certainly has a correlation to degree of impairment. (Remember, the Cannabix will tell officers if a person has smoked within the last two hours) We still don’t know how much someone has smoked or how impaired a person is two hours after smoking.

The purpose of alcohol and marijuana DUI laws are to prevent impaired driving. Being impaired is what makes our streets dangerous, not whether someone has smoked marijuana at a given point in the past. The Cannabix creates a DUI standard of how long it’s been since someone has smoked, not whether they are actually impaired.

Imagine if we had the same standard for alcohol: You have one beer at dinner. You drive home an hour and a half later. For whatever reason, you’re pulled over and given a breathalyzer. The breathalyzer tells the officer that you’ve ingested alcohol in the last two hours. Although you’re clearly not impaired after one beer, you’re arrested for DUI simply because you’ve had something to drink in the last two hours.



California DWI – Driving While Addicted

Monday, May 19th, 2014

Believe it or not, it is a crime in California to drive while being addicted to drugs or alcohol.

Lesser known California Vehicle Code section 23152(c) provides: “It is unlawful for any person who is addicted to the use of any drug to drive a vehicle.”

You may be asking yourself the same thing I did when I first read it. Huh?

The “huh?” was the reactionary expression of two other questions: What’s the purpose? And who is an addict?

In the 1965 case of People v. O’Neil, the California Supreme Court addressed both of these issues by looking at the legislative intent of 23152(c). The court determined that “when an individual has reached the point that his body reacts physically to the termination of drug administration, he has become ‘addicted’ within the meaning and purpose of [23152(c)]. Although physical dependency or the abstinence syndrome is but one of the characteristics of addiction, it is of crucial import in light of the purpose of [23152(c)] since it renders the individual a potential danger on the highway.”

While the court focused on the theory that an addict going through withdrawals can pose a risk to the roads, it said that a person need not be going through withdrawals to be arrested, charged, and convicted of California’s driving while addicted law.

“The prosecution need not prove that the individual was actually in a state of withdrawal while driving the vehicle. The prosecution’s burden is to show (1) that the defendant has become ‘emotionally dependent’ on the drug in the sense that he experiences a compulsive need to continue its use, (2) that he has developed a ‘tolerance’ to its effects and hence requires larger and more potent doses, and (3) that he has become ‘physically dependent’ so as to suffer withdrawal symptoms if he is deprived of his dosage.”

So let’s get this straight. You can be charged with a crime if you’re addicted to drugs or alcohol even if you’re not intoxicated or you’re not going through withdrawals. So then that begs the question: What’s the point?

Unfortunately, the California Supreme Court has yet to answer that question.

Fortunately, however, the law does not apply to those who are participating in a narcotic treatment program.

Well it’s nice to know that the law only protects those who are receiving treatment for their disease, but not those who aren’t.