Marijuana DUI is Tougher for Cops to Prove

When Colorado and Washington state became the first in the nation to approve the use of marijuana for recreational purposes, they have now taken on stricter definitions for what it means to be legally under the influence of the drug while driving.

In Washington state, a provision of the recreational use law held that a blood test showing 5 nanograms or more of THC in one’s system would indicate intoxication. Now, a similar measure in Colorado is awaiting the governor’s already-promised signature to become law.

Our marijuana DUI attorneys know that even though these two states are seen as laxer with regard to marijuana use, users in that state will potentially face a higher uphill battle to have charges of impaired driving dismissed or reduced than would someone in Alabama.

Certainly, though, we may not be far behind, as law enforcement agencies and prosecutors are fully aware — similar proposals have been made in numerous other states.

But this idea of quantifying marijuana intoxication is a dangerous one for a number of reasons, the biggest of which being that it isn’t very accurate if the goal is to reduce the number of impaired drivers on the road.

First of all, alcohol and marijuana differ not only in the way they affect the body and mind but also in the way the body processes them. Alcohol dissipates from the system very quickly, while traces of marijuana can remain for days or possibly even weeks. So the presence of the drug in one’s blood – whether it’s legal in the state or not – does not necessarily mean one is intoxicated. This is true even when someone’s blood content measures above 5 nanograms of THC. Scientifically speaking, there is no clear link between THC levels and intoxication. What’s more, the 5 nanogram limit is arbitrary.

According to R. Andrew Sewell, an assistant professor of psychiatry at the Yale School of Medicine, who was quoted by the Wall Street Journal on this very issue, setting these types of limitations will cause many impaired drivers to be missed and a lot of innocent people to be arrested.

The other problem is with field sobriety tests. These tests are subjective as it is. However, while almost all officers are trained in how to identify a driver who is drunk, very few are qualified and specially trained to identify whether a person is under the influence of drugs. Those who can are called Drug Recognition Experts. Their training is intensive and expensive, and they’re usually aren’t enough to be called on for every single case. In the end, a lot of the cases that don’t involve a DRE get tossed for lack of reliable evidence.

The code holds that you can face DUI charges if you are under the influence of a controlled substance “to a degree which renders (the suspect) incapable of safely driving.” That’s a very vague definition. At least until science and technology catch up, it should remain that way.

In the future, we may see the invention of devices that can accurately detect marijuana intoxication. But we’re not there yet, and punishing people on the basis of an arbitrary threshold – slapping them with a criminal record in the process – is hardly fair.

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