Cannabis DUI Testing Creates Record Buzzkill in Legalization States

One year after Washington voters legalized cannabis for recreational use, cops are still pulling over cannabis consumers by the hundreds, not for “reckless” or “impaired” driving, but simply for suspicion of having THC in their bloodstream. Until just weeks ago, drivers were forced to submit to blood tests, which could be administered for something as minor–and legal–as the scent of cannabis (as of September 28, a warrant must be obtained, but the statistics listed in this article reflect only January to June).

This unscientific, highly controversial cannabis testing scheme declares an arbitrary limit of 5 nanograms per mililiter of blood (far less than the alcohol limit of 8 nanograms) as impairment, and does not account for the fact that regular tokers, like patients, maintain higher-than-baseline THC levels in their blood even if they have not consumed cannabis in days. Just getting in a car to drive to work in the morning automatically makes tens of thousands of medical marijuana patients, not to mention other regular tokers, instant criminals under these laws.

The unintended result is that sober drivers are newly eligible for DUI convictions even if they show no sign of impaired driving. On this count, it seems that pot smokers have traded the charge of simple possession for the cost and stigma of a DUI conviction. Somehow, I think I’d prefer a possession charge.

Washington cops are stopping and testing substantially more drivers for cannabis since the law took effect, up to 745 in just the first half of this year compared with 1,000 for the entire year before. Before the passage of the initiative, which included this “per se” impairment law in its language, Washington cops had to prove actual impairment – usually with evidence of speeding, swerving, reckless driving, etc. – if a driver fought the charge in court. Not anymore, however, now they simply have to prove there was 5ng/ml or more of THC in the driver’s bloodstream, even though there is no scientific research that equates 5ng/ml with impairment.

In fact, experiments have documented that this number is indeed arbitrary and irrelevant when determining the ability to drive safely. KIRO-TV, the CBS affiliate in Seattle, conducted an experiment wherein drivers were asked to smoke varying amounts of cannabis and get behind the wheel on a closed course. “Summarizing the results, KIRO’s reporter noted that ‘our volunteers were able to smoke pot and drive safely at four times the legal limit.’”

Colorado has an identical cannabis consumption limit, thanks to an ill-thought out law hastily passed in the wake of recreational legalization. Here, too, you can drive perfectly safely and still get convicted of a DUI, even if you haven’t smoked cannabis in days. But instead of a “per se” law that declares any driver impaired based solely on blood test results, Colorado’s law considers 5ng/ml “permissible inference” of impairment. That means drivers would be able to fight the DUI charge in court, but the law would not be on their side: the “permissible inference” of impairment essentially means that drivers are considered guilty until proven innocent.

In a Reason.com article, Denver attorney and cannabis activist Rob Corry shared his thoughts on the ramifications of the new law with author Jacob Sullum shortly before its passage:

“A five-nanogram cutoff “completely ignores all the science,” which indicates that “there is no particular number that determines impairment by THC across the population. THC affects everybody differently. There are many people who are not impaired at well over five nanograms, and there are some who are probably impaired at under five nanograms.” If the law is changed so that DUID is a “permissible inference” from a THC level of five nanograms or more, such defendants will still be able to argue that they were not impaired, but that case will be harder to make. “What it does is shift the burden of proof,” Corry tells [Sullum]. “A person coming into court is guilty until proven innocent….If you put a number on it, juries are going to latch onto that five-nanogram number, whether it’s a permissible inference or a per se [standard], and the effect will be that innocent people are convicted, whether or not they’re impaired.”

Cannabis activists generally understand that certain concessions need to be made in order for recreational legalization to be approved by a majority of voters. I think we can all agree that, in the interest of public safety, no one wants anyone driving while impaired in any way. But, likewise, I don’t believe that anyone wants people to be branded with a costly DUI conviction based on arbitrary THC/blood levels instead of whether they’re actually driving recklessly. Many pro-legalization activists opposed Washington’s initiative for this very reason, and many more ought to denounce any future initiative that considers such an unreasonable capitulation.

As more states move forward with their aspirations to legalize recreational marijuana, let us hope that subsequent states take a lesson from the hard-won mistakes of the trailblazers. We are in a unique position of being able to look at their examples and learn what not to do, and create future initiatives where cannabis – and reason – prevail.