Federal traffic safety officials have expressed concern that with a growing number of states legalizing recreational marijuana, law enforcement may be thwarted in their attempts to enforce laws on marijuana DUI because they won’t be able to test for the drug.
One of the main problems is the lack of a reliable quantifiable standard to gauge intoxication. With alcohol, adults over 21 in all 50 states are considered impaired by alcohol if their blood concentration of the substance is 0.08 percent or higher. This is called the per se limit.
As our marijuana DUI defense lawyers can explain, there is no per se limit for marijuana in California or in most other states, whether the drug is legal or not. Even in states where there is a per se limit, such evidence can be vexing for prosecutors because it’s undeniably inaccurate when it comes to actually proving intoxication. Unlike alcohol, which dissipates very quickly from the bloodstream, THC (the intoxicating element in marijuana) is processed much slower by the body. A person may have used the drug the day before – or use it regularly – and no longer be intoxicated, but still meet the per se threshold.
The other issue is that because marijuana is legal, the mere smell of it is no longer enough to form the basis of reasonable suspicion necessary to conduct a search of a vehicle and/or person.
Bruce Landsberg, vice chairman of the National Transportation Safety Board, stated these aspects of marijuana legalization has raised the concern that our roads may no longer be as safe. The fact is, he said, we understand less about cannabis’ intoxicating properties – and how to accurately measure it biologically – than we do alcohol. This has resulted in practical concerns in terms of enforcement.
Enforcing California Marijuana DUI Law
In California, Vehicle Code 23152f prohibits anyone from driving under the influence of drugs. Proving it in court, however, can be another matter altogether.
Police agencies have expressed worry that absent any quantifiable standard to measure cannabis intoxication, those arrested for driving under the influence of it will be rejected by the courts. In fact, as our Los Angeles marijuana DUI lawyers can explain, this has happened in a number of cases throughout the country where police officers weren’t experts on assessing the effects of marijuana use.
There are ways to ascertain whether a motorist is impaired by marijuana, including Standardized Field Sobriety Testing. Additionally, officers can be trained as Drug Recognition Experts. But both of these are non-chemical and, in truth, somewhat subjective and open to interpretation in court. Plus, DRE training can be costly and not every agency can afford it. Ultimately, the science has not been developed yet to determine what THC level in a person’s body can definitively tell us whether someone is intoxicated – and we may never have it, given that one’s body chemistry and personal tolerance vary so significantly.
Even if an accurate per se limit could be identified, the reality is there is no accurate roadside test to detect it. There are some devices on the market, but they have been successfully challenged in court cases. A California company does plan to release a THC-detecting breathalyzer on the market sometime next year, but again, the presence of the drug alone isn’t proof positive of impairment.
The Los Angeles CANNABIS LAW Group represents growers, dispensaries, ancillary companies, patients, doctors and those facing marijuana charges. Call us at 714-937-2050.
Feds worry about catching those driving while high in states that legalize weed, By Jonathan D. Salant, NJ.com