Pubdate: Mon, 29 Dec 2014
Source: Albuquerque Journal (NM)
Copyright: 2014 Albuquerque Journal
Contact:  http://www.abqjournal.com/
Details: http://www.mapinc.org/media/10
Author: D'val Westphal
Note: D'val Westphal Of the Journal Assistant editorial page editor 
D'Val Westphal tackles commuter issues for the Metro area on Mondays.

EXAMINING LEGALITY OF POT USE, DRIVING

WHAT'S ONE TOKE OVER THE LINE HERE? Eric Jackson points out, "We all 
know it's illegal to drive while intoxicated, and that it's illegal 
to have open containers of alcohol in a vehicle - but what about 
using marijuana?

"Let's say a person has a medical marijuana card," he emails. "Is 
there an 'open container' law for pot? I ask because I observed a man 
toking on a marijuana pipe while stopped at a stoplight in Rio 
Rancho. Is it illegal to partake of marijuana while driving, even if 
one has not reached a level of intoxication that would cause impairment?"

It's illegal to get high while driving. To drive while high is a 
tougher question, one the New Mexico Legislature has yet to answer.

Rep. Bill Rehm, R-Albuquerque, a retired Bernalillo County sheriff's 
captain, has tried for years to get a "drugged driving" law on the 
books. So let's turn to him for the specifics.

Rehm answers the easy question first, explaining, "New Mexico does 
not have an open container 'toking' law. If an officer observes a 
person toking, they arrest them for possession of marijuana and 
possession of drug paraphernalia."

THE DIFFERENCE BETWEEN LIQUOR AND DOPE: Rehm says, "Not everyone who 
drinks alcohol intends to become intoxicated. They have a drink with 
dinner. Smoking marijuana has one purpose; to get high."

A little background: "We should understand U.S. past drug policies," 
Rehm says. "In the late 1800s to early 1900s there was unregulated 
recreational drug businesses for all drugs. Customers entered the 
business and got high. In the early 1900s the United States 
strengthened its poison laws and labeled marijuana a poison. By 1937 
marijuana was illegal with a tax of $200 per ounce. This tax remains today."

But the potency has increased. "Today's marijuana is over 25 times 
more potent than the marijuana of the '60s and '70s," Rehm says. "The 
more times you smoke marijuana, the less smoke is needed to become 
high. Unlike alcohol, smoking marijuana lowers your tolerance to marijuana."

Now put them together and get behind the wheel. "Drinking alcohol 
mixed with controlled substances causes a very dangerous mixture," 
Rehm says. "Since the late 1990s this trend dramatically increased 
nationwide. In New Mexico, police officers can request a breath or 
blood test from the (suspected) DWI driver. If the (alcohol level in 
the) blood test is not 0.08 percent or more, then the blood is tested 
for drugs. Of these tests, over 90 percent are positive for alcohol 
and a controlled substance. Many of those tests are for multiple 
controlled substances. Marijuana is the predominate drug found."

So are drugged drivers prosecuted like DWIs? The short answer is no.

"New Mexico law does not exempt a medical marijuana driver from our 
DWI law," Rehm explains. "When we examine our New Mexico DWI law, we 
see the Legislature set two different standards for court proof. The 
alcohol standard is 'unlawful for a person who is under the influence 
of intoxicating liquor to drive.' Drugged driving is a higher 
standard to be proved - 'under the influence of any drug to a degree 
that renders the person incapable of safely driving a vehicle.' " In 
Rehm's mind "there should not be two different standards."

"We have tested persons to determine what level of alcohol impairs 
their driving. For drugs, this has not been done, even for 
prescription drugs. The lack of scientific data is one defense a 
defense attorney uses in a DWI court hearing."

As a member of the new House majority, Rehm says it's important to 
look at new studies that show "brain damage as a result of smoking 
marijuana" as well as consider "who will fund the marijuana cessation 
programs" similar to those for tobacco smokers?

"New Mexico's DWI problem does not need to be increased by allowing 
recreational marijuana," he says. "Colorado has seen an increase(d) 
number of DWI arrests (that) involve a driver who had just smoked 
marijuana. We must continue to watch Colorado and now Washington and Oregon."

And in the meantime, lawmakers should finally address drugged driving.
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MAP posted-by: Jay Bergstrom