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Will the Legalization of Marijuana in some Western States lead to an Increase in DUI Arrests?
Possession of certain amounts of marijuana will soon be legal under state laws in Washington and Colorado. Police in both states are now concerned about road safety and a spike in drivers operating motor vehicles while under the influence of drugs (DUI).
Colorado's change in pot possession laws do not make any changes to the state's DUI laws. Washington's law does change DUI provisions by setting a new blood-test limit for marijuana. Police are training to enforce this new DUI law, and some DUI defense lawyers are already gearing up to challenge it.
"We've had decades of studies and experience with alcohol," said Washington State Patrol spokesman Dan Coon. "Marijuana is new, so it's going to take some time to figure out how the courts and prosecutors are going to handle it [with respect to DUI cases]. But the key is impairment: We will arrest drivers who drive impaired, whether it be drugs or alcohol."
Drugged driving is illegal, and nothing in the measures that Washington and Colorado voters passed this month to tax and regulate the sale of pot for recreational use by adults over 21 changes that. But law enforcement officials wonder about whether the ability to buy or possess marijuana legally will bring about an increase of marijuana users on the roads.
Marijuana legalization activists agree people shouldn't smoke and drive. But setting a standard comparable to blood-alcohol limits has sparked intense disagreement, said Betty Aldworth, outreach director for Colorado's Campaign to Regulate Marijuana Like Alcohol.
"There is not yet a consensus about the standard rate for THC impairment," Aldworth said, referring to the psychoactive chemical in marijuana.There's no easily available way to determine whether someone is impaired from recent pot use.
There are different types of tests for marijuana. Many workplaces test for an inactive THC metabolite that can be stored in body fat and remain detectable weeks after use. But tests for current impairment measure for active THC in the blood, and those levels typically drop within hours.
According to the National Highway Traffic Safety Administration, peak THC concentrations are reached during the act of smoking, and within three hours, they generally fall to less than 5 nanograms per milliliter of blood – the same standard in Washington's law, one supporters describe as roughly equivalent to the .08 limit for alcohol.
Two other states – Ohio and the medical marijuana state of Nevada – have a limit of 2 nanograms of THC per milliliter. Pennsylvania's health department has a 5-nanogram guideline that can be introduced in driving violation cases, and a dozen states, including Illinois, Arizona, and Rhode Island, have zero-tolerance policies.
In Washington, police still have to observe signs of impaired driving before pulling someone over, Coon said. The blood would be drawn by a medical professional, and tests above 5 nanograms would automatically subject the driver to a DUI conviction.
Supporters of Washington's measure said they included the standard to allay fears that legalization could prompt a drugged-driving epidemic, but critics call it arbitrarily strict. They insist that medical patients who regularly use cannabis would likely fail even if they weren't impaired.
They also worry about the law's zero-tolerance policy for those under 21. College students who wind up convicted even if they weren't impaired could lose college loans, they argue.
Jon Fox, a Seattle-area DUI attorney, said he's interested in challenging Washington's new standard as unconstitutional. Under due process principles, he said, people are entitled to know what activity is prohibited. If scientists can't tell someone how much marijuana it will take for him or her to test over the threshold, how is the average pot user supposed to know?
By contrast, he noted, the science on alcohol is well established. Some states publish charts estimating how many drinks it will take a person of a certain weight over a certain time to reach .08.
But such a challenge to Nevada's marijuana DUI limit failed in 2002, when the state Supreme Court ruled that the Legislature has broad authority to set driving standards. The U.S. Supreme Court declined to review that case, said Las Vegas DUI attorney Michael Becker.
"Marijuana affects everyone differently," Becker said. "The prevailing opinion of forensic toxicologists is that a 2-nanograms standard, such as exists in Nevada, absolutely results in convictions where individuals are not actually under the influence. But the 5-nanograms standard more closely approaches the mean threshold of prevailing opinion."
Colorado's legalization measure didn't set a driving standard – an intentional omission by the activists who wrote it because the issue has proven divisive. Lawmakers in Colorado, which has an established medical marijuana industry, have tried but failed three times to set a THC driving limit.
Drugged driving cases in Colorado were up even before the legalization vote. In 2009, the state toxicology lab obtained 791 THC-positive samples from suspected impaired drivers. Last year, it had 2,030 THC-positive samples.
Remember, possession of any amount of marijuana is illegal under South Carolina law, and you can be arrested for DUI if an officer suspects you are driving under the influence of drugs. In future posts we will discuss how South Carolina police officers are trained to detect impairment from drug use.
If you have been charged with DUI in Charleston, North Charleston, Mt. Pleasant, Summerville, or anywhere in Charleston, Berekeley, or Dorchester Counties, our DUI Lawyers are here to help. Your initial consultation is confidential and free of charge.