MARIJUANA LAW UPDATES BY JUDGE MARY A. CELESTE (RET.), DENVER COUNTY COURT
Per Se Marijuana Driving Laws: Here to Stay?
This column will update readers on developments in marijuana legalization.
M
arijuana is the most common illicit drug in drugged driving cases (26.9 percent). Marijuana
driving laws are set forth within the alcohol and driving statutes in a majority of the states. The typical state statute essentially says that you cannot drive under the influence of alcohol or of any other illegal, illicit drug or substance or control substance or any combination thereof that causes impairment. There are sixteen states that have separate DUI and (Driving Under the Influence of Drugs) DUID statutes1
and Washington
carved out a separate law that addresses driving under the influence of marijuana solely. Marijuana driving laws also have a separate approach related to what constitutes impairment. There are three types of state
marijuana driving impairment laws. A handful of which are per se set blood levels of impairment, some of which set a zero tolerance for all illicit substances and drugs including marijuana, and, some that are based strictly on driving behavior, observations by law enforcement, and testing and toxicology. The zero tolerance states, about 20, mandate that you cannot drive with any detectable level of drug in your body with half of them also including the inactive drug metabolites. Tere are six per se states that set
blood nanogram levels of impairment in marijuana driving cases. Colorado, Montana and Washington have 5
54 datia focus
nanograms per milliliter of blood levels. Colorado has a litle twist of permissive inference, which makes it more liberal than Montana and Washington. Ohio and Nevada have 2 nanograms and Pennsylvania has 1 nanogram. Although Alaska and Oregon just came forward with recreational marijuana they didn’t include any levels for it, or any new laws related to marijuana and driving under the influence of drugs. Illinois atempted this year to bring forward a 15 nanograms per milliliter of blood level which has failed thus far, Maine shot down 5 nanograms with a liberal permissive inference, and California shot down two. Virginia specifies per se for cocaine, methamphetamine and PCP but does not specify thresholds for marijuana or THC. Many European countries have set blood per se levels for a variety of legal and illegal drugs including marijuana.
There are a couple of important
studies by governmental entities that question the relationship between THC blood levels and automatic impairment. A recent National Highway Traffic safety Administration (NHTSA) report stated “it is inadvisable to try and predict effects based on blood THC concentrations alone” {emphasis added}. The National Institute on Drug Abuse (NIDA) stated “in marijuana cases there is no absolute standard relationship between blood levels of marijuana and (or metabolites) and impairment.” If the trend across the country is to set per se marijuana levels, it is just a matter of time before those companies developing THC breathalyzers or oral fluid testing will seek to quantify THC levels. Some companies are now conducting nationwide studies on their oral fluid drug testing devices that quantifies drug
Winter 2016
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