Changing sobriety standards, no caselaw to reference, and unreliable test methods make prosecuting cannabis DUIs a challenge.
“Cases are more complicated to prosecute and take considerably longer than a classic drunk driving case,” says attorney Todd Spodek. Courts across the country have trouble proving that stoned drivers are too stoned to drive.
There are several examples of overturned marijuana DUI charges:
- Unscientific nanogram limits: Several drivers have successfully argued that their DUIs were based on inaccurate nanogram levels.
- Faulty impairment recognition: One officer in Georgia made over 90 DUI arrests in 2016. Judges dismissed many charges after further testing invalidated his findings.
- Medical exceptions: Drivers with medical marijuana authorizations get extra leeway in some states.
- Improper testing: Some police use inappropriate methods to entice a confession. Without proof of impairment, that confession is less convincing.
Why is it so difficult to properly identify stoned drivers?
We’re still learning the science behind the psychoactive properties of cannabis. According to the NCPIP, there are more than 480 natural components in cannabis, 66 of which are unique chemicals known as cannabinoids. They’re divided into the following subclasses:
- Cannabigerols (CBG)
- Cannabichromenes (CBC)
- Cannabidiols (CBD)
- Tetrahydrocannabinols (THC)
- Cannabinol (CBN) and cannabinodiol (CBDL)
- Other cannabinoids (such as cannabicyclol (CBL), cannabielsoin (CBE), and cannabitriol (CBT)
Studies have found that the cannabinoid most responsible for making users feel “high” is THC. THC is fat-soluble while alcohol is water-soluble. This means that THC takes much longer to breakdown. Essentially, THC stores itself in your fat cells while alcohol dissolves quickly through your liver.
Failing an alcohol breathalyzer means alcohol is active in your system. But finding THC in your bloodstream doesn’t mean THC is active.
THC metabolizes into two main forms: 11-OH-THC, or hydroxy-THC and THC-COOH, or carboxy-THC. THC-COOH, unlike THC, is not psychoactive. Conversely, 11-OH-THC, the active metabolite of THC, has psychoactive properties.
A urine test may reveal THC-COOH in the system, but that doesn’t prove that 11-OH-THC is present. Drug tests that look for THC-COOH, therefore, aren’t conclusive in determining impairment.
THC-COOH is easier to detect for a longer period. Some lawmakers don’t understand the nuances of THC, thus many sobriety tests look for any form of THC. And tests become even murkier when factoring varying levels of tolerance or ingestion methods.
We need more studies to fully understand the science of how we ingest marijuana and how it impacts driving. That’s why many people advocate for new approaches to testing stoned drivers.
Improving marijuana DUI laws
It’s clear that current approaches to determining cannabis intoxication fall short. The lack of conclusive tests make prosecuting stoned drivers a challenge.
“These tests are so unscientific that they both under and over punish drivers,” says Jolene Forman, staff attorney with the Drug Policy Alliance. She states that, due to testing and prosecuting inconsistencies, innocent drivers can be incorrectly punished. Similarly, actual stoned drivers may beat sobriety tests or have their cases dropped.
What can lawmakers do to improve marijuana DUI tests? For starters:
- Improve technology: Current testing methods aren’t foolproof. Authorities should study and invest in new tech. Several startups hope to develop better methods, but their efficacy isn’t yet known.
- Better training: Law enforcement must work to better recognize symptoms of impairment. New equipment should also be incorporated.
- Understanding cannabis: More marijuana studies are absolutely necessary. Since the plant is illegal on a federal level, research grants and funding is hard to come by. As legalization becomes common, more studies will unearth new findings.
Marijuana DUI statistics
There are some studies on stoned driving in legal states. These are their findings:
- Washington Traffic Safety Commision: Studied toxicology reports from 1,773 fatal accidents between 2010 and 2014.
- 60 percent of drivers tested positive for alcohol, pot, or other drugs.
- Eight percent of drivers tested positively for only marijuana.
- In 2014, 84 percent of pot-positive drivers had hydroxy-THC in their system. Of those, about half exceeded the five nanogram legal limit.
- THC positive drivers were involved in more daytime crashes. Alcohol accidents, on the other hand, frequently occurred in the night.
- Council on Responsible Cannabis Regulation: Examined data from the Colorado Department of Transportation.
- Less than eight percent of DUI citations involved solely weed.
- 3 percent of all drivers in fatal crashes tested positive for cannabis. 32.7 percent tested positive for alcohol.
- Total number of cannabis DUIs decreased by 1.3 percent from 2014 to 2015.
These are some of the first marijuana DUI statistics and studies. In reality, there isn’t much concrete information yet. It’s difficult to make definitive statements about the impacts of marijuana after only a few years of legality. Time will reveal more trends and correlations.
What to do if arrested for marijuana DUI
Without an accurate measure of THC levels, drivers must simply drive when they feel sober. So, police are more conscious of stoned drivers, and they charge more drivers with marijuana DUIs.
If you are pulled over and arrested for driving high, you automatically consent to take a blood test. You do have the option to refuse the blood test. This requires a hearing with the department of licensing that can result in a long license suspension. Some attorneys recommend taking the blood test, as murky weed DUI laws could work in your favor:
“There is little case law on the admissibility of marijuana chemical tests in New York. Therefore the statute would guide that if a driver consented to a test, there is a strong case for admissibility” says Kimberly Anne Pelesz, a defense and family law attorney.
A good lawyer can question the process leading to a DUI arrest, including poking holes in the testing process. As we know, today’s testing methods aren’t reliable.
“Although field sobriety tests can be somewhat reliable for marijuana, unlike the breath test in the field for alcohol, there is no scientific instrument which measures levels of THC in the field,” says attorney Matt Pinsker.
Fighting a marijuana DUI
Regardless of the specifics of your case, hiring a competent DUI lawyer is a must. They give you a much higher chance of getting a good case result. Not only that, but our research shows that DUI lawyers are always worth the cost.
The newly imposed laws give authorities more ground to charge you with a DUI. That said, you’re also more likely to beat the DUI charge. Lawyers can question the legitimacy of the blood test to see if officers use proper procedure. In most states, only a few labs have been approval for blood tests.
“DUI marijuana cases are much easier to defend. If an attorney knows the science behind the chemical testing, DUI marijuana is typically one of the easiest cases to win,” says criminal attorney Michael A. Dye.
In states that don’t have a legal limit, it’s even easier to prove your innocence in court.
“It’s not enough to merely suspect someone has consumed marijuana. In the absence of an admission or a blood test, it can be very difficult if not impossible to prove that this person has used marijuana,” says criminal defense attorney Glenn Kurtzrock.
Even with a positive test, authorities must prove that poor driving is due to intoxication. This has led to some novel and interesting cases by defendants in cannabis DUI cases.
“One position that many defendants take is to state they are frequent users of marijuana, therefore even if they test above 5 nanograms of active THC they are still not impaired,” says Lindsey Parlin a Colorado attorney.
What happens if convicted of a marijuana DUI
Marijuana-related driving laws in many states are ambiguous. This can give you an advantage in court. However, there is still a very real chance you will be convicted of a pot DUI.
A cannabis DUI carries the same criminal punishment as an alcohol-related DUI. But it can result in greater fines and jail time due to marijuana’s drug classification.
While legal in some states, the Drug Enforcement Administration still classifies marijuana as a Schedule 1 drug. Marijuana DUI penalties can lead to greater fines or jail time depending on the offense.
Aside from fines and jail time, the state can suspend your license. After license suspension, the state notifies your insurer. This will impact your policy in a negative way.
Insurers will likely classify you as a high-risk driver. This increases your car insurance premiums for up to seven years. Depending on your driving history, your insurer could cancel your policy.
The future of high driving
“Unfortunately, no one has come close to perfecting the technology for an accurate cannabis breathalyzer,” says Rebecca Gasca, CEO of Pistil and Stigma.
Advocates stress that there’s no golden goose for cannabis detection. A sound detection policy needs a bottom-up approach with several different recognition methods.
“These include greater use of drug recognition evaluators, the use of modified roadside field sobriety tests, the provisional use of use of roadside cannabis-sensitive detection technology, such as saliva test or breath test, and the provisional use of handheld performance technology,” says Paul Armentano, NORML‘s deputy director.
As more and more states open the door to recreational cannabis, we will learn more about cannabis and driving. The pioneer states are crucial in guiding the conversation to form sensible policy for dealing with stoned drivers.