Pubdate: Mon, 20 May 2013
Source: Wall Street Journal (US)
Copyright: 2013 Dow Jones & Company, Inc.
Author: Zusha Elinson


Amid Relaxed Laws, Officials Wrestle With How to Determine Who Is

As some states relax laws on pot possession, lawmakers are struggling
to create rules for how police officers should identify motorists who
are driving under the influence of marijuana.

The problem: Identifying pot impairment isn't as clear-cut as testing
for alcohol. There is no broad agreement over what blood level of
THC - marijuana's psychoactive ingredient - impairs driving.
Breathalyzers can't detect marijuana levels, and only a small
percentage of police officers are trained to authoritatively identify
pot-DUI cases.

When voters in Washington state legalized recreational pot use last
fall, they decreed that drivers with five nanograms or more of THC per
milliliter of blood - a level that some studies suggest is associated
with increased accident risk - are under the influence. In Colorado,
which also last year legalized pot possession, lawmakers passed a bill
earlier this month that sets the same limit, but gives drivers a
chance to prove that they weren't impaired. In Montana, where medical
marijuana is legal, the governor signed similar legislation last month.

But the correlation between THC levels and impairment isn't
scientifically straightforward, said R. Andrew Sewell, an assistant
professor of psychiatry at Yale School of Medicine. He said the
compound leaves the blood quickly and that regular pot smokers who
have built up a tolerance and maintain higher levels may not be
impaired at the new legal limits. Setting these limits "is going to
cause a lot of impaired drivers to be missed and it's going to cause a
lot of innocent people to get arrested," he said.

Washington state trooper James Arnold's experience illustrates the
conundrum. In May 2012, he arrested Danny Linh after pulling him over
for speeding in Seattle, after which he smelled a "strong odor of
marijuana" and observed "bloodshot/watery eyes," according to his
report. The trooper radioed for a drug-recognition expert, but none
was available.

A judge in March threw out the officer's field-sobriety tests after
Mr. Linh's lawyer argued that they weren't reliable, and prosecutors
dropped the case last month. Blood tests also showed Mr. Linh was
below Washington's new legal limit for THC, although that didn't have
a bearing on this case because the law went into effect after the arrest.

Ian Goodhew, deputy chief of staff for the King County prosecutor's
office, said the case may have turned out differently if a
drug-recognition expert had been available, noting that there aren't
"enough to cover every DUI investigation." Robert Calkins, spokesman
for the Washington State Patrol, said troopers are well-equipped to
deal with drugged drivers. He declined to make the trooper available
for comment.

Mr. Linh, now 22 years old, said he wasn't high and that the sobriety
tests were "stupid because they were meant for alcohol." His lawyer,
Blair Russ, said the case shows that "we cannot hastily apply
marijuana DUI laws," because there is a "lack of sufficient research
to make a decision about someone's innocence or guilt, especially
given the current tools available to law enforcement."

Sobriety tests have been developed for drugged drivers, but just
6,837, or less than 1%, of the nation's police officers are fully
trained, according to the International Association of Chiefs of
Police, which coordinates and manages the training program. Oregon
State Patrol Sgt. Michael Iwai, who coordinates training for Oregon
and works with the association, said officers using a 12-step
evaluation specifically designed to identify drugged
drivers - including a so-called walk and turn, balancing on one foot
and an eye examination - are able to detect marijuana impairment.

In part because of the ambiguities in detecting pot-DUI situations,
states like Colorado say they need an analog to the blood-alcohol
test. "Without a test a lot turns on everything at the roadside and
roadside tests related to marijuana impairment are not as clear-cut as
the alcohol tests are," said Tom Raynes, executive director at the
Colorado District Attorneys Council.

The Colorado bill on pot DUI passed after six tries and heated debate
over setting the appropriate THC limits. White House drug czar Gil
Kerlikowske said that "when the science actually catches up with the
law, they're going to find that five nanograms is too high" a limit to
be using. He is urging states to adopt laws that ban any trace of
drugs, like a bill now being debated in the California

Meanwhile, states are still sorting out punishments for drivers who
are found to be high. In Washington, drivers arrested or convicted of
DUI offenses, for alcohol or drugs, must install a device that
prevents the car from starting if it detects alcohol on the driver's
breath. But the ignition-interlock device doesn't detect marijuana or
any other drug.

Stephen Graham, a Spokane criminal defense attorney, said he was
"flabbergasted" when the Washington Department of Licensing wanted a
client to install one after an arrest for driving under the influence
of marijuana.

Brad Benfield, a spokesman for the Washington Department of Licensing,
said the department must follow state rules. Part of the rationale for
the law is that alcohol and marijuana are often present together in
impaired drivers, said Shelly Baldwin of the Washington Traffic Safety
Commission. In the future, she said, "we're going to see technologies
that will make testing for marijuana possible."

A version of this article appeared May 20, 2013, on page A3 in the
U.S. edition of The Wall Street Journal, with the headline: Blurry
Line on Pot-DUI Cases.
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