Montana Bill Submitted to Set DUI Standard

Montana may be the next state to set a DUI standard for marijuana. The law enforcement community asked the Montana Legislature to pass laws that will set the legal limit for motorists who drive under the influence of marijuana. The main active chemical in marijuana is delta-9-tetrahydrocannabinol, more commonly recognized as the shorthand “THC.” Representative “Doc” Moore (R-Missoula) is sponsoring the bill which would set the legal limit at 5ng/ml (5 nanograms per milliliter). This is the same legal DUI standard that was set in Colorado and Washington, where marijuana was legalized in December.

Some oppose the bill, including Dr. Pat Pardis, a medical marijuana advocate who said the limit was too low and could criminalize those who have medical marijuana prescriptions. Montana Highway Patrol Drug Recognition Expert Kurt Sager testified that 490 of all blood submissions were marijuana related, and said that it is quickly becoming the most prevalent drug in traffic accidents.

Dr. Pardis told the Legislature that if they pass a DUI standard as low as 5ng/ml, then the Legislature may as well take away all the licenses of medical marijuana users because it was unlikely they would legally be allowed to drive anymore. “I think what you could do is just take the drivers licenses away of all medical marijuana users. I think we are down to about 8,000 now,” Pardis testified. “So you can just take their licenses away because none of them will probably pass the standard that you’ve set.”

Recreational Use of Marijuana Legal in Colorado Dec. 10

Recreational use of marijuana became legal in Colorado after Governor John Hickenlooper signed the Executive Order to make the “official declaration of the vote” in relation to the famous Amendment 64, which passed by a 55.33% majority on Nov. 4 of this year.

The declaration signed by the Governor officially formalizes A64 as part of the Colorado Constitution and now makes personal use legal. An adult over the age of 21 may also possess marijuana and is also entitled to limited home-growing.

Governor Hickenlooper created a task force to help residents understand the policy, legal and procedural issues that need to be addressed and resolved within A64.

The legal issues that may need to be ironed out include DUI Marijuana. Under Colorado law, any detectable amount of THC could lead to a DUI charge. How Colorado’s marijuana DUI law will reflect their new stance on possession remains to be worked out by lawmakers.

“Driving High” Marijuana DUI Law in Washington

Marijuana will be legal in the state of Washington starting on December 6, but drivers need to be aware that the ballot initiative that legalized it also included a new DUI Standard which may make driving riskier for regular users than the previous law did.

Under Washington law, adults (persons 21 years and old) may possess up to an ounce of processed marijuana, 16 ounces of marijuana-infused product (solid form), or 72 ounces of marijuana infused liquid product.

The DUI standard and physical control laws have set the THC level for intoxication at 5 nanograms per milliliter of blood. This has been deemed the level at which motor skills are impaired to the point that it is too dangerous for a person to operate a motor vehicle, and is similar to the standard for alcohol which is 0.08.

A driver’s THC must be tested through a blood test. The law that allows for a blood draw on a driver has changed, they are referred to as Implied Consent laws, and now the law allows for blood tests if the driver is suspected of being under the influence of marijuana.

The DUI standard for persons under age 21 is zero tolerance. Any driver under the age of 21 who is suspected of being under the influence of marijuana, and who subsequently tests for any amount of marijuana in their system, will be charged with DUI.

Washington State Patrol Spokeman Bob Calkins said, “Regardless of whether this person has been a regular user of marijuana, may have a routine THC level in his blood of this point or that point, if he’s driving OK, he’s probably not going to come to our attention. And if he’s driving badly, he probably is going to come to our attention.”

Part V of the initiative, the section that establishes the per se DUI limit of THC at 5ng/mL, has raised concern amongst medical marijuana advocates who say the new DUI law will lead to convictions for those who use marijuana to treat their ailments. The metabolite 11-COOH-THC, which is the secondary metabolite in marijuana that forms after consumption of cannabis and is also known as the metabolite that can remain in a person’s system for days to weeks, is explicitly excluded for from consideration for a DUI charge.

11-OH-THC is the active metabolite of THC. If both 11-OH-THC and 11-COOH-THC are present then motor impairment may still be present.

Washington DUI and Marijuana Laws

On Nov. 6, when the legalization of marijuana was voted on in Washington, there were many assumptions and hanging questions about what the new law actually meant. One man was arrested shortly after the law was passed for smoking marijuana in a public park. He thought he was safely doing so because marijuana had just been legalized, but technically that would not go into effect for two months, and new laws did not allow public consumption, either. The new law does not officially take effect until Dec. 6, but already 220 possession cases have been retroactively dismissed.

A guide for the public on what legal use now means in Washington has been published. Jonah Spangenthal-Lee is a former journalist who was hired by the police department earlier this year, and along with police spokesman Sgt. Sean Whitcomb, the two have produced good advice for the public on how they can better understand I-502.

Here are a few snippets from the pamphlet:

Q:What happens if I get pulled over and an officer thinks I’ve been smoking pot? A: If an officer believes you’re driving under the influence of anything, they will conduct a field sobriety test and may consult with a drug recognition expert. If officers establish probable cause, they will bring you to a precinct and ask your permission to draw your blood for testing. If officers have reason to believe you’re under the influence of something, they can get a warrant for a blood draw from a judge. If you’re in a serious accident, then a blood draw will be mandatory.

Q:What happens if I get pulled over and I’m sober, but an officer or his K9 buddy smells the ounce of Super Skunk I’ve got in my trunk? A: Under state law, officers have to develop probable cause to search a closed trunk or locked container. Each case stands on its own, but the smell of pot alone will not be reason to search a vehicle.

The article Marijwhatnow? A Guide to Legal Marijuana Use In Seattle is just one attempt to inform the public of what they can expect from the passage of 1-502. Washingtonians are now faced with learning the new marijuana DUI law that came with I502, which sets 5 nanograms as the standard for what is too much THC in the system for driving.

Hundreds of Marijuana Cases Dismissed in Light of I-502

King and Pierce County prosecutors are going to dismiss more than 220 misdemeanor marijuana cases after the passing of Initiative 502, which decriminalizes small amounts of marijuana.

King County, whose largest city is Seattle, has 175 case dismissals of people 21 and older who were charged with possession of one ounce or less of marijuana. I-502 does not begin until December 6th but Dan Satterberg, King County Prosecutor, has moved to retroactively apply the initiative. Satterberg said in a press release, “Although the effective date of I-502 is not until December 6, there is no point in continuing to seek criminal penalties for conduct that will be legal next month.”

Not long after, the King County Sheriff’s Office announced that their deputies “will not be directed to arrest or charge individuals caught with one ounce of less of marijuana following the passage of I-502.”

A group of academics found that in the past 25 years, there had been 241,000 misdemeanor marijuana possession cases in Washington, and 67,000 of them had been in past five years. Seattle City Attorney Pete Holmes said that when he took office, he stopped prosecuting simple possession marijuana cases altogether.

The Justice Department has not commented on the passing of I-502. Marijuana is still illegal under federal law, and some are worried that Washington state may be sued over legalization.

Colorado Lawmakers Revisiting Bill for Marijuana DUI Standard

Colorado lawmakers will revisit a bill calling for a marijuana DUI standard for a fourth time in January 2013. A marijuana DUI standard would establish a blood-level limit for drivers, meaning motorists could be charged with driving under the influence if their blood contains a certain level of THC. This bill is being sponsored again by Mesa County Republican Senator Keith King, and the bill proposes that the limit should be 5 nanograms of THC per milliliter of blood.This bill was rejected in May when lawmakers could not agree on how to properly measure a motorist’s intoxication by marijuana and what was deemed as too impaired to drive. Nevada and Ohio have a 2 nanogram of THC ng/mL limit and Pennsylvania has a 1-nanogram limit. A motorist can be charged with drugged-driving in Colorado but the evidence is based on law enforcement’s observations.

Opponents of the marijuana DUI standard have doubts that impairment by marijuana and impairment by alcohol can by measured similarly. It is understood that the effects of cannabis on psycho-motor abilities is correlated to dosage, however lawmakers cannot agree on how to appropriately measure impairment due to issues relating to residual neuropyschological effects.

Colorado is one of 16 states that allows medical use of marijuana, and on November 6, 2012, Colorado Amendment 64 will be on the ballots, which is an amendment to Article 18 of the state constitution that would allow for a progressive marijuana drug policy. Essentially, personal use and regulation of marijuana would be allowed for adults over the age of 21 if Amendment 64 is passed.

Opponents of the THC-limit worry that medical marijuana users may be wrongly accused if the bill is passed. “We risk convicting people of an impaired infraction when they’re not actually impaired,” said Michael Elliott, executive director of the Medical Marijuana Industry Group. Another possible concern could be detection of cannabinoids even if one is not an active user of marijuana. In the Journal of Forensic Science, a study by Morland et al. (1985) shows that passive inhalation of cannabis smoke can be detected in blood and urine, with THC concentrations being detected as high as 6.3 ng/mL.

These are issues that must be confronted by lawmakers especially in a state that allows for medical use and may be on its way to legalization of marijuana.