Joseph P. Hougnon, Attorney at Law

Marijuana DUID’s and Per Se THC Limits Part 2

Reefer Madness – Science vs. Hysteria

Proposition 64 – Where Do We Go From Here?

On November 8, 2016, California voters passed Proposition 64, the legalization of marijuana for personal use. The new law makes it legal for individuals to use and grow marijuana for personal use on November 9, 2016, although the sale and subsequent taxation of recreational marijuana will not go into effect until January 1, 2018.

The question now is whether California will follow the lead of states like Colorado and Washington and pass “per se” DUID laws with low THC limits?

As I wrote in previous chapters of this blog, most states, including California, do not have per se limits for Driving Under the Influence of Drugs (DUID) cases, as they do for alcohol-related DUI’s. If you have drugs in your system and you’re arrested for suspicion of DUID in California, the District Attorney will have the burden to prove beyond a reasonable doubt your ability to drive was impaired, as they do in alcohol-related DUI’s, where the driver’s BAC is below the legal limit of .08% [CVC section 23152(a)].

If California were to pass a per se law for marijuana-related DUI’s, however, the presumption of innocence would no longer apply to those whose THC levels are at or above the threshold set by the legislature, as those who are driving with a BAC at or above the legal limit of .08% are presumed guilty by law in alcohol-related cases. Indeed, some states have taken this approach to Marijuana-Related DUID’s, enacting “per se” laws for drivers with relatively low levels of THC.

Several states have passed per se THC limits for marijuana-related DUID’s, while other states have passed zero tolerance laws. The question is whether California will decide to pass similar laws now that marijuana is legal for personal use, and whether science will play a key role in their decisions?

As studies have shown, the one-size-fits-all per se approach to marijuana-related DUID’s flies in the face of actual science and will lead to the arrest of some drivers who are not impaired at all, as well as those who may not have consumed marijuana for several days, or even weeks.

California Senator Diane Feinstein recently stated that one of her main biggest concerns regarding the legalization of marijuana for personal use is the anticipated rise in “impaired drivers” on our roads. It’s the same refrain heard from politicians and law enforcement all over the country.

“You are commercializing a product that is just going to put more impaired drivers on the road, worsening a problem that we already have,” said Newark Police Chief James Leal, a board member for the chiefs association (Los Angeles Times, October 16, 2016).

Because driving is a privilege and not a right, concerns regarding public safety will always trump individual rights in any legislation being contemplated. However, politicians owe the public more than fear mongering and political correctness, especially where laws affecting criminal prosecutions and potential denials of liberty are concerned. A drug-related DUI conviction could have devastating effects people’s lives.

Therefore, it’s vital that our lawmakers give due consideration to the science related to this issue and communicate the facts to the public before they consider passing a per se law in marijuana-related DUID’s.

Prop 64 imposes a 15% tax on retail sales of the drug. The tax should generate up to $1 billion annually, including $15 million during the first five years that will be used by California Highway Patrol to train law enforcement officers in the techniques to detect impaired driving and to establish statewide protocols and standards for identifying impaired drivers, according to a review by the state’s independent legislative analyst.

Lt. Gov. Gavin Newsom, the highest elected official in the state to support the initiative, said the tax on marijuana sales would help develop standards for enforcing safe driving laws.

Will actual science and facts play a part as law enforcement develops these “standards?” Given the industry being created under this new law, and flow of money involved, we can only hope justice and fairness are part of the equation as law enforcement deals with finding ways to enforce the recent change in laws governing the use of marijuana.

Critics of per se limits and zero-tolerance policies in marijuana-related DUID’s argue they do not necessarily prove impairment at all, so they could be used to punish drivers who are not actually impaired.

Andrea Roth, an Assistant Professor of Law at the University of California-Berkeley, wrote an article, “The Uneasy Case for Marijuana as Chemical Impairment Under a Science, Based Jurisprudence of Dangerousness.” She argues these numerical per se limits for marijuana are scientifically unfounded.

“There is no demonstrated linear or predictable relationship between THC blood limits and an increased relative crash risk,” Ms. Roth said. “The smoking gun of causation is case-control studies and single-car fatal crashes.”

Roth analyzed four studies that provided data on THC and single-car fatal crashes and nine case-control studies that surveyed randomly stopped drivers about THC use. Roth concluded that none of the studies suggested a relationship between THC levels and an increased crash risk. She added, We shouldn’t be relying on completely, scientifically illegitimate per se laws to convict people.”

“I think that a lot of people are in danger,” said Vivian McPeak, the executive director for Seattle Hempfest. “Especially medical patients.”

According to Paul Armentano, Deputy Director of the National Organization for the Reform of Marijuana Laws, “Marijuana is not alcohol. We are talking about different families of drugs that interact on different parts of the brain that manifests in different changes of behavior. It’s absurd.”

Yes, it is absurd, but it may soon be the law in California. If so, proving the driver was actually impaired may not be required to prove marijuana-related DUID’s.

Studies have shown that smoking marijuana regularly can contribute to an excessive buildup of delta-9-THC and carboxy-THC in the body’s fat cells. This has long been a concern for medical marijuana patients, especially in states with fixed “per se” limits or “zero-tolerance” policies. Given the new law in California that makes it legal to consume marijuana for personal use, those same concerns now apply to regular recreational users of the drug.

Marijuana can stay in your system long after consuming the drug, and long after the drug influences the brain. But, what does 5 nl/Ml (THC) actually mean?

A study published in 2015 by Forensic Science International found that THC stays in the blood of chronic users longer than previously thought. Researchers monitored 21 participants who admitted to consuming marijuana heavily over the previous three months. Each participant abstained from the drug over the course of the study.

After 24 hours, nine of the participants still had active delta-9-THC levels above 5 nanograms per milliliter of blood, meaning they would have been over the legal limit in states with per se limits of 5 nanograms or less, as well as any state with a zero-tolerance policy. Two participants still tested at 5 nanograms more than five days into the study. So, in this study, more than half of the participants had levels of THC in their blood long after they consumed marijuana.

Therefore, many people driving in states with a 5 ng/Ml (THC) per se limit would be presumed guilty if they were arrested for a marijuana-related DUID, even if they had abstained from consuming marijuana for 5 days or more.

Let’s hope politicians and law enforcement in California will remain open minded and take the time to become well educated on this issue before taking up legislation to enact per se limits for marijuana-related DUID’s or creating policies to enforce the laws.

Stay tuned for “Marijuana DUID’s and Per Se THC Limits” – Part 3.


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About the Author

Since 1996, Joe Hougnon, Esq. has provided the best legal services for DUI, Criminal charges & personal injury cases in northern California.