Pubdate: Sun, 31 Jul 2016
Source: San Francisco Chronicle (CA)
Copyright: 2016 Hearst Communications Inc.
Author: Peter Fimrite


Police Lack Test to Identify Those Too High to Drive

There are certain telltale signs that a person is stoned: bloodshot 
eyes, forgetfulness, ravenous late-night cravings.

But the November ballot measure that would legalize recreational pot 
in California says nothing about how police should detect tokers who 
climb behind the wheel. There's no marijuana equivalent to the famed 
bloodalcohol content tests - taken by breath, blood or urine - that 
have planted .08 into the American consciousness.

It's not a pressing concern for marijuana advocates, even as 
entrepreneurs try to develop a better sobriety test for dope smokers. 
But it's a big quandary for California law enforcement officers, who 
are facing a question that has vexed several other states where 
recreational pot is legal.

California law bars driving under the influence of psychoactive 
substances, including weed. But with no definitive measurement for 
intoxication, arrests are often challenged, with officers relying on 
evidence like indecisiveness behind the wheel or a pungent car interior.

The lack of clear parameters for driving while stoned is one reason 
many police agencies and political leaders have opposed the Adult Use 
of Marijuana Act, known as Proposition 64. Voters in four other 
states also will weigh in on legalization, and they could join 
Colorado, Washington, Oregon, Alaska and the District of Columbia in 
sanctioning adult use of the drug.

"It's very problematic because we would be basing any type of 
prosecution on field sobriety tests," said Ken Corney, the president 
of the California Police Chiefs Association, which is opposing the 
initiative on the Nov. 8 ballot. "The potential for people driving 
around under the influence is increased by not having adequate 
measures to make an arrest or to prove impairment."

Constant challenges of field sobriety tests, Corney said, "can take 
time, resources and can further burden the criminal justice system."

Advocates for marijuana legalization and some experts following the 
issue, however, see the focus on doped driving as a distraction, 
questioning whether authorizing pot use would affect the roadways of 
a state that already has a ripe medical cannabis industry.

Some recent studies have called into question purported connections 
highlighted by legalization opponents between marijuana use and car 
accidents. A report last year by the National Highway Traffic Safety 
Administration stated the agency "did not find an increase in 
population-based crash risk associated with THC use."

Andrea Roth, an assistant law professor at UC Berkeley and an expert 
on pot legalization, called claims by elected officials, law 
enforcement groups and the National Institute on Drug Abuse that pot 
has contributed to a rise in accidents "scientifically irresponsible."

The debate stems from the nature of the drug: The active ingredient 
in pot, tetrahydrocannabinol or THC, is fat-soluble and binds with 
different receptors in the body than alcohol, which is water-soluble. 
As a result, THC levels can be the same in a person who smoked 15 
minutes ago or two days ago.

It is therefore extremely difficult to prove that a motorist who 
appears stoned is actually impaired, experts say.

Things were simpler when marijuana was fully illegal. Any amount in 
the blood or in the car could have led to charges. But Proposition 
215, the 1996 law that approved medical marijuana, made it legal for 
people with a doctor's permission to have some THC in their system.

Prop. 64 would legalize the use and possession of up to an ounce of 
marijuana for anyone 21 or older and allow adults to grow as many as 
six plants for personal use - though using pot in public would remain 
illegal. The new rules essentially mean toking and driving is OK as 
long as the partaker isn't addled.

Law enforcement officials expect the number of stoned drivers to 
increase if recreational use is permitted. The question is, how much 
- - a joint, a bong hit, a slice of a brownie - is legally safe?

That's something Colorado legislators have been grappling with since 
January 2014, when their state became the first to legalize 
recreational marijuana. Lawmakers there at first set a limit of 5 
nanograms of THC per milliliter of blood for motorists. Five other 
states have set similar limits.

The problem is that recent studies have shown that blood levels can 
drop below 5 nanograms even when a person is still high. Meanwhile, 
regular users could have high THC levels even if they haven't 
ingested any pot that day, according to experts.

Colorado dealt with the problem by changing the language in their 
marijuana bill, stating that 5 nanograms in the blood is a 
"permissible inference" of impairment combined with other factors, 
like bloodshot eyes and the presence of pot smoke, bags of weed and 
paraphernalia in the car.

"The state still has to prove that you were impaired ... so an 
accused person can show a doctor's recommendation for so much per day 
and argue that they can function at that level," said Sam Kamin, a 
constitutional and criminal law professor at the University of Denver 
who is on the state's recreational marijuana implementation task force.

In 2014, Colorado law enforcement officials reported a 12.2 percent 
increase in driving-under-the-influence citations involving pot. The 
Rocky Mountain High Intensity Drug Trafficking Area, an organization 
set up to track the impact of legalization in Colorado, said 
marijuana-related traffic deaths jumped 32 percent from 2013 to 2014.

Marijuana advocates call these numbers misleading, not least because 
they relied on blood testing to find THC levels.

The increase in citations, they say, only means more people are using 
marijuana than in the past and that law enforcement officers are 
looking more closely for it - not that more people are driving high. 
Also, they say, most of the fatal accidents in the studies involved 
other drugs and alcohol in combination with pot.

"The well-acknowledged truth is that there is no known relationship 
between THC blood levels and increased relative crash risk," Roth 
wrote in a California Law Review paper. If anything, she said, the 
studies suggest "that drivers with only THC in their blood are not 
causing a disproportionate number of fatal crashes."

Amid the debate, California officials have been pushing for the 
development of technology to help catch stoned motorists. A 2015 bill 
that established a state bureau to license, regulate and tax medical 
pot also authorized research on marijuana-specific field sobriety 
tests. Many police departments have also been hiring experts who can 
identify symptoms of drug intoxication in motorists.

One piece of legislation proposed in April would allow California law 
enforcement officers to use oral swab tests to strengthen cases 
involving drivers who failed field sobriety tests. The handheld 
electronic devices, deployed in pilot programs in Southern California 
and other areas, test for the presence of marijuana, cocaine, 
amphetamines and pain medications in saliva.

One driver in Kern County was convicted using the readout from his 
saliva test as evidence, according to prosecutors, who say those 
tested are more likely to agree to a plea bargain before trial. At 
least two companies, one in Colorado and the other in Vancouver, 
British Columbia, are working on marijuana breathalyzer technology.

To marijuana advocates, the push to treat marijuana like alcohol is folly.

"They are entirely different drugs with disparate behavior," said 
Paul Armentano, the deputy director for the National Organization for 
the Reform of Marijuana Laws, known as NORML.

Drunk and stoned drivers behave differently behind the wheel, he 
said, with alcohol tending to increase driver confidence, which can 
lead to recklessness. Marijuana, on the other hand, often inspires 
self-reflection, which can cause motorists to be more cautious and 
drive more slowly.

A National Highway Traffic Safety Administration study last year 
found that motorists with a blood-alcohol level of at least .08 were 
nearly 400 percent more likely to get in an accident than their sober 
cohorts. Drivers with THC in their systems were about 25 percent more 
likely than sober drivers to be in a crash.

Joe Rogoway, a Bay Area cannabis industry lawyer, said Prop. 64 could 
keep some potheads off the road.

"As use becomes available in social settings," he said, "it will 
diminish impaired driving because people will have a place to do it - 
instead of in their vehicles."
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MAP posted-by: Jay Bergstrom