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With the recently passed Proposition 64, California has legalized recreational marijuana. Driving under the influence of marijuana, however, remains illegal.
Proposition 64 itself did not set a limit for under the influence. Likely, legislators will set the limit for a “per se” THC DUI at 5 nanograms THC per milliliter of blood, as is the limit in Colorado and Washington.
On the other hand, the AAA Foundation for Traffic Safety recommends against a legal limit for THC and instead recommends training and field testing officers to be certified as drug recognition experts. If a drug recognition officer believes a suspect has used marijuana after a series of tests, a blood test could be used to confirm the presence of THC. The AAA Foundation argues that there is simply no level of blood THC that reliably predicts impairment.
However, any test based on THC levels raises concerns because marijuana, unlike alcohol, is fat soluble (meaning it is stored in the body’s fat cells) and stays in a person’s systems long after the effects of the drug have subsided. THC can be detected a week after a person last used cannabis. Alcohol is water soluble and has a generally linear relationship between the amount consumed and breath or blood alcohol content, which in turn has a generally linear relationship to driving performance and other signs of intoxication.
Currently, Los Angeles County has special drug recognition officers to evaluate those suspected of driving under the influence of marijuana, which is then confirmed with a blood test for THC in the bloodstream. Los Angeles has recently launched a program to train more officers in drug recognition and provide more machines for THC tests.
One drawback for law enforcement is the lack of a field test comparable to a Breathalyzer, which would quickly give them probable cause to make an arrest. In Colorado, law enforcement officers are conducting a three year pilot program for an oral fluid tester that samples a driver’s saliva for the presence of drugs, including marijuana. Law enforcement would take a cheek swab of saliva and the device would evaluate the presence of drugs in around five minutes.
Some companies are working on Breathalyzer-type devices that would detect marijuana even more quickly. However, these devices would only detect marijuana that had been smoked, but would be unable to detect THC that has been consumed, for example, in edibles.
Another approach is being explored by scientists at UCSD who are developing apps that measure a driver’s impairment, which could eventually be used by law enforcement as roadside sobriety tests. One such test measures “critical tracking” ability by having a subject use their finger to follow an object moving around a screen. Another measures time distortion, as one effect of marijuana use is the perception of time slowing down. While still in the experimental stage, these apps could provide a more accurate evaluation of a driver’s actual impairment than a THC blood test.
Ultimately, California is likely to follow in the footsteps of Colorado and Washington and set a THC limit, and will most likely also choose 5 nanograms per milliliter, possibly in conjunction with newer roadside sobriety tests. This may result in recreational users of marijuana being charged with THC DUIs despite not being impaired at the time of the arrest, based on residual THC levels in their body.
The attorneys at Moaddel Law Firm are experienced in fighting all forms of DUIs and are skilled at using scientific and legal knowledge to attack law enforcement methods and evidence. Contact us today regarding your THC DUI case.