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Opinion: Marijuana vs. alcohol impairment behind the wheel difficult to compare

DUI standards should change

Standards for driving under the influence of marijuana may need some improvements, since impairment is less easy to determine.  (Sestovic Sestovic / Istockphoto)
Standards for driving under the influence of marijuana may need some improvements, since impairment is less easy to determine. (Sestovic Sestovic / Istockphoto)

The combination of marijuana and driving can be exceedingly dangerous, especially for frequent users.

I’m not talking about statistics about cannabis’ presence in crashes, which seems debatable and likely overstated. I’m speaking of the high risk of arrest for Driving Under the Influence and how easy it is to be stopped, arrested and convicted.

Let me use a hypothetical, based on a real case.

“Mary” is an avid snowboarder and also a frequent recreational marijuana smoker, who purchases her cannabis product legally from Washington’s retailers.

One winter morning she smokes a small bowl, grabs her board and drives up to the ski resort. She plays hard, smokes another bowl at lunch and then hits more challenging terrain.

On her way home, a Washington state trooper clocks her exceeding the speed limit and pulls her over. She responds appropriately by stopping safely, greeting him politely and presenting her paperwork.

Then the trooper sticks his head in Mary’s open window and inhales. “I smell marijuana, ma’am.”

Mary admits she has marijuana in her car — it’s legal after all. She also tells him she smoked today, “but it’s been hours.”

The trooper asks Mary to step out of the car in order to perform tests to make sure she’s OK to drive.

She doesn’t hear the word “voluntarily.” Her heart is racing and her legs are tired from snowboarding. She doesn’t listen carefully and stumbles on the tests. The trooper says she failed and will be arrested. Mary starts crying.

He tells her she should volunteer to give blood, because otherwise he will get a search warrant. Wanting to be cooperative she agrees and is driven to the nearest hospital. Her blood is then sent to the Washington State Patrol Toxicology Laboratory to be tested for marijuana, alcohol and other legal and illegal substances.

A month later Mary’s results come back: 5.3 ng of “active” Delta-9 THC, which exceeds Washington legal limit of 5 ng.

Mary didn’t feel impaired. Her driving wasn’t affected. But she’s charged with DUI, which could include jail time, fines, license loss, ignition interlock requirements and substance abuse treatment.

In hindsight, Mary made several mistakes.

She could have said “I’ll do anything you order me to do; but if it’s voluntary, no thanks.” But human nature encourages us to not be difficult, especially with authority figures. But it is OK to politely challenge authority and only comply with law enforcement orders, which can include refusing field tests.

Smart drivers also don’t admit to consuming any substances – we all have a legal right to remain silent.

In my opinion, Washington’s cannabis legal limit of 5 ng isn’t based on science. It’s equivalent to about .08 g, about one or two beers, depending on the person. A more realistic marijuana legal limit for impairment should be 13 ng, closer to alcohol’s limit for impairment. Driving ability with active THC can also vary widely.

Marijuana DUI cases can be as simple as an officer smelling marijuana, asking about use, making an arrest and getting blood. Even minimal recent consumption will likely be higher than 5 ng. If alcohol’s DUI standard was the same, any whiff of booze would be suspicious, and the blood-alcohol content would only be .03 g.

Had Mary asked to talk to a lawyer and declined a blood sample, the trooper may not have received his warrant. But even the time to get the warrant would likely have allowed Mary’s blood to get below 5 ng.

In the end Mary hired a seasoned DUI attorney knowledgeable in marijuana laws. The attorney negotiated a plea deal to a lesser charge with no jail time. But Mary was still convicted, paid a fine, and was placed on probation where, sadly, she was ordered not to smoke pot.

John M. Brangwin is an attorney in north central Washington who focuses on DUI defense. He is only licensed to practice law in Washington; his advice is limited to those boundaries.
 
Tags: marijuana

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