United States: Potholes Ahead For Marijuana-Impaired Driving Regulation

Despite the federal Schedule I status of cannabis, more and more states are legalizing marijuana in some form. The nationwide increase in cannabis use means a rise in the number of cannabis-impaired drivers.

Most people know that driving impaired is illegal, regardless of the substance. Yet many people don't realize how difficult it is to reliably test for cannabis intoxication. Determining actual impairment following marijuana use is far more complex than the simple and reliable tests used to detect alcohol impairment.

When alcohol is consumed, it is readily absorbed into the blood system via the gastrointestinal tract. While factors such as the presence of food may influence this process, it occurs in a consistent manner over time. Peak blood alcohol concentration (BAC) is normally achieved within approximately 20 minutes after one stops drinking. Impairment increases with growing alcohol concentration and wanes with reduced alcohol concentration. The correlation between impairment and alcohol concentration has allowed the use of BAC to infer the individual's degree of impairment in a reliable and scientifically accepted manner.

WHAT DOES "UNDER THE INFLUENCE" MEAN IN TERMS OF CANNABIS USE?

Unlike alcohol, there is great variability among the states in their approach to driving under the influence of drugs (DUID). Fifteen states presently have drug "per se" (zero tolerance) statutes (AZ, DE, GA, ID, IL, IN, IA, MI, MN, NC, RI, SD, UT, VA and WI). Others require a certain threshold of tetrahydrocannabinol (THC) in a person's system to be considered under the influence, determined by either urine or blood sample. Moreover, a small number of states judge cannabis impairment based on the driver's behavior, regardless of the actual amount of marijuana in the system.

With alcohol, widely accepted field tests and blood alcohol tests are available to provide the basis for probable cause for arrest. No universal test for cannabis consumption is presently available.

Chemical Tests

In many states, a driver suspected of impaired driving may be arrested and taken to a facility to submit to a blood or urine test. Although there is no standard limit for active THC, several states accept five nanograms of THC as the limit. In states with a per se limit, any amount of THC is grounds for a criminal offense. Blood tests check for THC levels in whole blood and provide grounds for filing charges if the state's legal limit is exceeded.

This is problematic because THC, which is fat-soluble, can remain in tissue for weeks after ingestion, which can result in positive test results that have no bearing on the individual's actual level of intoxication. A regular user will likely have measurable THC metabolites regardless of recent ingestion. Moreover, a reliable biomarker of marijuana intoxication has not been identified. Impairment can vary based on (1) the consumed THC concentration, (2) whether the person is a frequent or heavy user, (3) the time elapsed since cannabis ingestion and (4) the ingestion method. A recent study from the American Automobile Association (AAA) found that even blood tests looking only for active THC − excluding residual THC from prior use − are not a reliable indicator for driving fitness.

Recently, some California municipalities and the California Highway Patrol have tested oral swab examinations in place of more complicated blood and urine tests to detect drugs. These tests work by identifying trace amounts of cannabis in a driver's saliva. "Oral swab testing is still an unproven technology," Dale Gieringer, director of the California National Organization for the Reform of Marijuana Laws (NORML) said, "there's no evidence that oral swab testing results have any correlation to impaired driving." Moreover, trace amounts of cannabis can be present in saliva up to three days after consumption.

Observed Impairment Tests

Many other jurisdictions use driver behavior as well as physical factors, such as tongue color and pupil dilation, to determine if one is potentially impaired while driving. Common field sobriety tests include the horizontal-gaze nystagmus test, the one-leg stand test, and the walk and turn test.

The horizontal-gaze nystagmus test usually is administered by an officer moving a finger or an object from side to side in front of a driver's face in order to detect an involuntary jerking of the eye associated with high levels of intoxication. After being strained beyond a 45-degree angle, a person's eye is believed to jerk naturally. But, if the eye begins to jerk at or before the 45 degree point, this reaction can be referenced as evidence that a driver is impaired. This test is estimated by the National Highway Traffic Safety Administration (NHTSA) as 77 percent reliable. Of course, those results are cold comfort for the 23 percent of sober drivers on the wrong end of a failed test.

During the one-leg stand, the suspect is instructed to raise his or her foot, hold still, count and look down. If hopping, swaying or putting the foot down are observed, the officer has grounds for an arrest. According to NHTSA estimates, this test is effective only 65 percent of the time.

Another divided attention test, the walk and turn test, also referred to as the "walk the line test" splits the attention of a person suspected of driving under the influence of cannabis between mental and physical tasks. The officer provides instructions to the driver and looks for loss of balance, inability to stay on the line, beginning before instructed, breaks in walking and the wrong number of steps. This is estimated by the NHTSA to be effective 68 percent of the time.

Of course, the reliability of observational testing is limited by the skill of the person administering the test, and the results are inherently subjective. Also, it is more difficult than a chemical test to prove in court, coming down to the judgment of the officer who may or may not possess the skills to accurately determine the driver's impairment.

PROBLEMS AND RECOMMENDATIONS FOR DUID DETECTION TECHNOLOGY

Currently, there are no evidence-based methods to detect marijuana-impaired driving. It is understandable that both the public and lawmakers have a strong desire to create legal limits for impairment in the same way we do with alcohol. "In the case of marijuana, this approach is flawed and not supported by scientific research," said AAA CEO Marshall Doney. "It's simply not possible today to determine whether a driver is impaired based solely on the amount of the drug in their body."

Following a recent study analyzing lab results of drivers arrested for driving under the influence of marijuana, the AAA Foundation for Traffic Safety recommended replacing technology with specifically trained police officers to determine driver impairment, followed by a test for the mere presence of THC, rather than a delineated threshold.

Other organizations have called for states to consider making the presence THC in the system a traffic violation. Studies supporting this approach show that marijuana- impaired driving roughly doubles the risk of a crash. By comparison, however, talking on a hands-free cell phone while behind the wheel quadruples the risk, and driving with a BAC of .12 − which is about the median amount in drunk driving cases − increases crash risks 15-fold.

According to the NHTSA, scientific studies are consistently finding that marijuana-impaired drivers pose a comparatively nominal accident risk. The largest-ever controlled trial assessing cannabis use and automobile accidents concludes that after controlling for age and gender, marijuana-impaired drivers possess virtually no statistically significant risk of crash compared with drug- free drivers. Still, more data must be collected to support definitive conclusions and policy decisions.

In its July 2017 Marijuana-Impaired Driving Report to Congress, the NHTSA recommended that efficient methods for training law enforcement personnel be instituted, including drug recognition experts to increase each officer's overall knowledge of the general manifestations of marijuana impairment and to be able to recognize these indicators in encounters with drivers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Wilson Elser Moskowitz Edelman & Dicker LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Wilson Elser Moskowitz Edelman & Dicker LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions