By Zosha
Millman | LXBN | September 8, 2016
In two months we could have five more states
decriminalizing recreational marijuana. The problem is, no one has found out
how to punish drivers under the influence of cannabis.
This is not a new issue. Since
Colorado and Washington became the first two states to welcome recreational
cannabis with more open arms, law enforcement has been struggling to figure out
a proper way to categorize THC drivers.
One of
the issues is that THC, the active intoxicant in marijuana, works differently
in your body than alcohol. Where testing a blood alcohol level can give someone
a pretty good indicator of whether someone should be behind a wheel. Sure,
there’s some variety in how many drinks it takes a person to get up there, but
the standard applies fairly evenly.
THC, meanwhile, gets stored in a user’s fat cells, and
isn’t water-soluble like alcohol is. Given the lack of a linear relationship
between amount of cannabis consumed, THC blood level, and driving performance,
it’s tough to simply adapt drunk driving laws to marijuana. Habitual marijuana
users can never smoke before operating a vehicle and still get nabbed for THC
that’s lingering in their system. They might have five nanograms per millileter
of THC (the limit in many places) at any given point.
“You
can be positive for THC a week after the last time you used cannabis,” said
Mark Kleiman, a professor of public policy at New York University, to NPR. “Not subjectively impaired at all, not impaired at
all by any objective measure, but still positive.”
Some
people jump off that point even further: The drunk driving laws we have now make
for bad policy when adapted to drivers under the influence of marijuana because
the risk is far from analogous. As Canna Law Blogwrote back in 2014:
Our
biases — that alcohol and cannabis are equivalent intoxicants, that being
stoned must make driving unsafe — run deep. [Eduardo
Romano, author of a study in a previously cited New York Times article],
despite having authored the study showing that cannabis didn’t
increase the risk of crashes versus the sober-baseline,
can’t help but succumb to his cultural common-sense, however non-scientific: “Despite our results, I still think that marijuana contributes
to crash risk,” he said, “only that its contribution is not as important as it
was expected.”
There
surely may be legitimate and persuasive reasons why a “stoned driver” shouldn’t
be trusted to operate a motor vehicle, perhaps even if such a driver were able
to demonstrate otherwise sufficient “field sobriety” before an experienced
public-safety officer. Yet the NYT article author, like Mr. Romano, appears to
presume that such a driver, merely by virtue of being “stoned”, represents a
public safety risk–regardless of the FST results.
Most
cannabis-concerned folks are aware that frequent use is likely to build up THC
concentrations in the body to such a degree that your blood-THC content might
still be five nano-grams per milliliter a day after you last lit up. And cannabis-users
and scientists alike understand that such blood-content has little bearing at
all on the only question that should matter: is there good reason to believe
that the driver was IMPAIRED at the time of driving?
Two
years and a handful of states with decriminalization later, and we’re no
clearer to finding an answer to that question. Colorado and Washington’s laws are both modeled on alcohol
sobriety tests, and in Washington if you test positive for THC you get an automatic DUI-cannabis. And with “drug corridors” popping up in places like Colorado, it’s clear that
law enforcement is finding the new laws give them a way in to marijuana drivers.
Of
course when the first alcohol blood standard was released it was about twice where we are now, and it took some time for it to be
lowered. Testing technology advanced, and the culture’s collective
understanding of driving drunk changed. There are some advancements being made
for cannabis; phone apps that use memory and sensory tests to more specifically test for THC impairment, new breath tests to detect levels of THC, spit tests that can “tell if you’re driving high in three minutes.”
But
until we better understand if such a “potalyzer” for roadside marijuana tests is even the best way to understand impairment, we’re
all left with a bit of a buzzkill.
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