Pubdate: Thu, 09 Apr 2015
Source: Alaska Dispatch News (AK)
Copyright: 2015 Alaska Dispatch Publishing
Contact:  http://www.adn.com/
Details: http://www.mapinc.org/media/18
Note: Anchorage Daily News until July '14
Author: Scott Woodham

HOW DO ALASKA POLICE TEST FOR MARIJUANA IN DRIVERS SUSPECTED OF DUI?

This week, we'll examine a two-part question from Roger about 
cannabis intoxication and impaired driving. It's been a hot topic in 
states where cannabis is now legal, and laws, policies and 
technologies are constantly evolving across the nation. The situation 
in Alaska is relatively stable because it apparently hasn't changed 
very much since voters approved the legalization of recreational pot. 
The Legislature has taken no action, and the ballot measure itself 
didn't include DUI details. Roger asks:

If a person is stopped by police, and suspected of impaired driving 
with cannabis, what test can police do that doesn't simply find 
traces in the blood or urine that could have already been there for 
weeks? Would this mean a person would have to wait a month before 
driving again, legally? With alcohol, there is a percentage limit 
that can be tested. Will they ever be able to do that with cannabis, 
to actually treat it "like alcohol?"

As Roger rightly notes, some marijuana tests detect past use, but 
don't test for intoxication. Without getting technical here, urine 
tests look for a version of THC which no longer has an active effect, 
and which the body can store for over a month or more depending on 
individual factors. Tests seeking that substance are commonly used by 
employers with zero-tolerance drug policies, and because those tests 
don't test for intoxication, they're different from the ones used in 
court on DUI charges. So, no, people won't have to be afraid of 
waiting to drive until all traces of marijuana consumption have left 
their bodies to avoid risking a marijuana DUI.

The chief intoxicating element of cannabis is delta-9 THC, or for our 
purposes here, "active THC." Basically it's THC that has not been 
used by the body yet. The only currently drop-dead accurate test to 
determine how much of it is in someone's system within the narrow 
window of time associated with suspicion of impaired driving is to 
draw blood and test it. Blood tests in that case do test for active 
THC, not the inactive kind that sticks around for a while. But, for 
reasons we'll get into later, that level by itself doesn't prove 
intoxication on a basis as reliable as a similar level for alcohol does.

Charges of DUI strictly involving cannabis are rare in Alaska. Megan 
Peters, public information officer for the Alaska State Troopers, 
said in the last two months, troopers have charged only one driver 
with driving under the influence of marijuana. According to a 
troopers dispatch, that driver was a 55-year-old Eagle River man who 
got pulled over because his passenger wasn't wearing a seat belt. 
That court case is pending, Peters said.

When asked whether Anchorage police had charged anyone with a 
marijuana DUI in the past two months, Chief Mark Mew didn't mention 
any specific cases but said, "We suspect marijuana involvement in 
approximately two dozen cases over the last couple months. This is a 
loose estimate, and the numbers cannot be confirmed until lab results 
are back. However, this number (and corresponding lab work) is based 
on cases in which suspects provide a breath (alcohol test) result 
below .08. It is not currently possible for us to estimate or know 
the total number of drivers who are impaired by both alcohol above a 
.08 and marijuana."

How do police judge marijuana impairment?

Mew wrote in an email that the investigation of a suspected marijuana 
DUI typically follows a protocol for APD officers:

An officer observes signs of impairment in a driver. The driver fails 
"standardized field sobriety tests" conducted at the scene. The 
officer arrests the suspect and takes him/her in for a breath test. 
The driver blows either a 0.00 (scenario A) or some value under the 
per se limit for alcohol (scenario B). So we now suspect alcohol's 
role in the impairment is either non-existent (example A) or amounts 
to a partial contributor (example B). But the driver is obviously 
wasted, so some other substance is involved. Is it pot? Some other 
illicit drug? A legally prescribed drug? Paint fumes? A seizure or 
diabetic episode? We ask more questions, which the driver may or may 
not choose to answer. We call a Drug Recognition Expert (DRE) if we 
have one on duty. The DRE may be able to ferret out the likely 
answer. Ultimately, we apply for a search warrant to get (and later 
analyze) the driver's blood. That is the only way we will know for 
sure what has been ingested. We take the driver to the magistrate, 
not knowing the results of the blood test. We explain whatever we do 
know and what we are waiting to learn. The magistrate considers all 
this in determining what kind of bail and conditions to impose.

Peters in an email described troopers following essentially the same process.

Compared to alcohol breath tests, blood tests for cannabis are 
expensive and something of a hassle for law enforcement because of 
special protocols, storage, delay of test results and extra training 
needs. In Alaska, drawing blood for determining impaired driving 
requires consent or a warrant unless there are other factors beyond 
suspicion of cannabis intoxication. Alaska law issues driver's 
licenses on the condition of implied consent for alcohol breath tests 
under suspicion of DUI, and for blood or urine tests for any 
controlled substances in the case of an accident that causes death or 
serious injury. But the state's driver manual doesn't mention 
cannabis by name in the section explaining implied consent laws.

All of these reasons mean there is strong incentive for technological 
innovation. Once the breath test for alcohol became standardized and 
states set blood alcohol limits, known as "per se" limits, police and 
citizens alike gained a clear standard to make decisions on. But that 
doesn't exist yet at a statewide level, and according to Mew, it 
would have to be a change made at that level.

Can pot have a legal limit like alcohol?

Colorado, along with other states, has set a per se limit of active 
THC at 5 nanograms per milliliter of blood. But that ratio means 
different things to different people. Many smokers may be intoxicated 
at that point, but many heavy or frequent users, including medical 
patients, may feel perfectly sober there. But everyone, no matter 
body type or experience level, is a certain, quantifiable amount 
"drunk" with a blood alcohol content of .08 percent.

The per se law in Colorado has led to complications for law 
enforcement and citizens, a phenomenon some call "sober DUIs" because 
the ratio of intoxication to blood THC level depends largely on 
individual use patterns.

The cannabis critic for the Denver weekly Westword (and a medical 
card holder in Colorado), for instance, tested at more than three 
times his state's legal limit after abstaining from all forms of pot 
overnight plus 15 hours. That bears repeating: He tested at nearly 
three times Colorado's legal limit for active THC in the blood, but 
he was completely sober.

There are saliva tests available, but they're not as reliable as the 
courts would need them to be for evidence of intoxication. A Canadian 
company says it has developed a prototype pot breath test machine, 
but details are sparse. If a reliable and accurate breath test were 
ever developed and put widely in use, like the one in place for 
water-soluble alcohol, marijuana's fat-soluble nature may mean 
evidence vulnerable to challenge. But who knows how any of this will 
play out in the courts.

All of this means, in my opinion, that setting per se limits for pot 
pose a big challenge. Unless future technology can reliably and 
accurately test for active THC and correlate it to impairment based 
on a known and regular formula, society won't be able to treat 
marijuana strictly "like alcohol" when it comes to DUIs. Still, 
because of the great need among citizens and law enforcement to 
determine what amount of THC in the body is safe to drive with, and 
then find a cheap and reliable way to test for it, science and 
entrepreneurs are searching for the magic bullet.

Time will tell however, and because of THC's behavior in the body, 
the most reliable future test of impaired driving may not even end up 
being one of blood. Because of the expense and hassle of blood tests, 
if someone could figure out a way to get blood out of the cannabis 
DUI enforcement equation, it could be worth a mint.

To that end, researchers at Arizona State University have developed a 
smartphone app they say is a new use of technology already in use to 
detect Alzheimer's and Parkinson's and one Marines are adapting to 
train helicopter pilots. The app uses a phone's camera to measure the 
tiny, involuntary movements of the eyes to determine how impaired 
someone is. It will soon be studied in the field, according to ASU, 
in one study with users to see if the app has an effect on their 
decisions whether to drive or not. Another study will work with 
police to "detect what drug is in a person's system and the degree of 
impairment," starting with marijuana.

Are stoned drivers a problem in Alaska?

According to the Christian Science Monitor, in Washington in 2013, 
the first full year of legalization there, drivers testing positive 
for marijuana jumped nearly 25 percent over the previous year, but 
there was no corresponding increase in car accidents or fatalities. 
Intoxicated driving of any kind is never a good idea, but to 
complicate things even more, transportation studies have found that 
including losing some reaction time, stoned drivers tend to recognize 
their own impairment and compensate for it.

So while the world researches the problem and the Legislature 
approaches the end of its session, what enforcement tools are needed 
right now according to authorities?

Mew said that an implied consent law for both blood and breath would 
help but that it would have to pass muster in the courts and 
Legislature. He and Peters both said that their agency's marijuana 
DUI enforcement efforts would benefit from some sort of easy, 
accurate and reliable test, either of breath or blood. But Mew added 
that in the meantime, an expansion of refrigeration capacity would 
help APD store test samples, as well as an expansion of training 
programs for patrol and specialist officers who encounter drugged drivers.

Mew said that wish list was part of what APD has learned from other 
agencies around the country, but another need the department heard of 
has less to do with enforcement and more to do with gathering data: 
"Reprogram your reporting systems to capture the marijuana and 
drugged driving statistics that everyone is soon going to demand."

That data would be of use to policy makers in Alaska, for nothing 
else to determine the real scope and nature of problems stoned 
drivers pose on Alaska roadways.
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MAP posted-by: Jay Bergstrom