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Marijuana DUI: Fact and Fiction

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As legalization spreads throughout the nation, the issue of issuing a marijuana DUI to stoned drivers is becoming a serious obstacle.

I’m a driver. There’s nothing better than a steering wheel in my hands, an open road, and the tunes blaring. I’ve drove hundreds of thousands of miles since that day the state deemed me worthy of operating a motor vehicle on public roadways. I haven’t had a citation in over 25 years, except for a few cases of burnt out tag lights and bored cops. I’ve only been involved in one accident, and that only because a guard rail wouldn’t let me escape from the already crashing 280Z that was careening towards me. And yes, at the risk of incriminating myself, I have done much of that traveling under the influence of marijuana.

I used to drink and drive, a lot. Playing in a traveling band back in the day, it was a bit of a job requirement. But as the laws became more strict and DUI checkpoints more common, I gave it up, along with drinking in general. Cannabis replaced beer. I became a popular Designated Driver. I’d sneak my hitter along and take a carload of noisy drunks anywhere they wanted to go. I only smoke on back roads, never on a main road or around traffic. I’ve driven through lots of checkpoints while high and never had a problem. If you don’t have smoke rolling out the windows, an overwhelming smell in the vehicle, and have the red eyes accounted for by shades or eye drops, you have it made. Even though there are laws on the books and a threshold established at which you could be charged, there was virtually no DUI for marijuana alone. But with the legalization movement, that may be changing soon.

With Colorado becoming the birthplace of recreational marijuana, there comes the inevitable afterbirth. They don’t want you “getting all potted up and climbing behind the wheel” to coin the “Fox and Friends” phrase. You can get a citation for it. 288 were issued in Colorado from January to April of this year. But the real reason for concern among stoned pilots is that you can be arrested and charged with DUI, (actually called DUID now) while not being actually high at the time, and not having any weed or paraphernalia on you. Colorado, as well as most other states, sets the limit at 5 nanograms of THC in whole blood. As anyone who’s ever had to sweat through a drug screen to get or keep a job can tell you, cannabis stays in your system long after the effect has faded. Unlike alcohol, which has scientifically-proven numbers to tell when it no longer has an effect, there is no such number for marijuana. This works well for those prohibitionists and law enforcement factions who are trying to stop more States from legalizing. Losing the money they made from illegal marijuana, they may use the highways to keep their coffers full.

“Am I driving okay?”

So they bring out the fear mongering. First, they needed a poster child, meaning somebody to do something really stupid. In January, they were accommodated when one Keith Kilbey crashed into two parked cars at the bottom of a freeway ramp. To make it worse, they were the kind of cars that had flashing lights on them. And yes, those lights were turned on at the time. A State Police spokesperson announced to the media soon after that the suspect was high on marijuana. They’d predicted that legal pot would amount to total carnage on the state’s highways. CSP even posted the story on their Facebook page.

With Facebook being full of intelligent, reasonable, well spoken people, it wasn’t long before many determined that the hell the CSP had predicted was upon them. Potted up people were running over police cars with their lights on. The media was soon to follow with scary headlines. But several months later when Kilbey’s court date came up, the Denver Post ran the headline, “Drunk, Stoned Driver Takes Plea Deal in Adams County Crash.” It turns out that Keith was more than three times the legal limit of blood alcohol content, something omitted when the news first broke. But the original story had done it’s job. The truth at this point was inconsequential.

In Washington state, the DUID question caused pro-legalization factions to split over Initiative 502, the bill that eventually became its legalization law. “No On I-502” became the most vocal critic of the law. While the group supported an end to prohibition, they claimed that the provisions of the new law actually might increase the penalties of marijuana use, and actually continued prohibition under the guise of the DUI, shifting focus away from sales and possession. They had a point. So much so that “The Seattle Hempfest” wouldn’t actually come out in support of, or against, I-502. In the end, I-502 was deemed a step in the right direction and passed as law.

There are pot breathalyzers being developed, although none have proved to be completely viable as of yet. But they are merely a detection tool, they have no way of proving impairment. Even the U.S. National Highway Traffic Safety Association, (NHTSA) admits that “Toxicology has some important limitations. One limitation is that, other than alcohol, toxicology cannot produce ‘per se’ proof of impairment.” And due to a lack of studies, it’s hard to find any science in this area. Science and marijuana have never gotten along very well. As far back as the 70s, when President Nixon went against the findings of his own panel and made marijuana a Schedule 1 drug, most of the arguments against marijuana have come from propaganda and not true science.
As far as vehicle operation while high goes, I think my personal driving record speaks for itself. But I’m also aware that we all have different plateaus of what we can handle. KIRO-TV, a television station in Seattle, gave a stoned driving test to three volunteers, a medical marijuana patient, a weekend user, and an occasional user. While there were variables amongst the user’s, such as body weight, metabolism, and tolerance, all three drivers were able to operate the vehicle safely while being over the legal limit for impaired driving. They were near five times the legal limit before their driving became suspect. One adorable volunteer named Addie, the medical cannabis patient, showed up to the test with marijuana already in her system. One would assume she spends a lot of time high. Addie was still driving ok at seven times the legal limit. The other two subjects became impaired at lesser levels.

Perhaps with legalization becoming a reality, science can now attempt to explain why a petite twenty-something female can handle her marijuana better than a larger 30-something male. When we can learn at what point impairment occurs on an individual basis, perhaps we can create just laws that will indeed keep those who are dangerous off the roads without punishing those who aren’t. Until then, the safest bet is to make sure you don’t give them a reason to pull you over. Check those tail lights. Keep it off the white lines. Watch out for police cars parked at the bottom of the ramp with their lights on.

I recently found my favorite advice on this subject. It came from a Blade in the Grasscity Forums;
“When traveling with weed, only break one law at a time.” Let’s be careful out there.