Policing Cannabis

posted in: Blog | 0

With Medical Marijuana Becoming Legal Across the U.S., How will Law Enforcement Determine Who is Driving High?

Everyone knows that driving under the influence of alcohol brings with it hefty fines, severe punishments and often, even jail time. But with more and more states either legalizing or decriminalizing cannabis, many people are curious to know what the legal ramifications of driving with cannabis in your system may be. Since cannabis, unlike alcohol, stays in the system longer than 24 hours, how will law enforcement test for, prosecute and manage traffic incidents where drivers are suspected of driving under the influence of cannabis?

In Pennsylvania, a person may not drive, operate, or be in physical control of the movement of a vehicle if there is any amount of cannabis in their system. The legal threshold for tetrahydrocannabinol (THC), the main mind-altering ingredient found in cannabis, in the system of the driver is 1 ng/ml of blood. Testing can be done using blood, saliva or urine. In New Jersey, the state may convict based solely on observation evidence of the motorists, and tests include field sobriety, drug recognition evaluations, blood, urine and breath.

When you drink, alcohol spreads through your saliva and your breath, and it eventually saturates your lungs and blood. Measuring the volume of alcohol in your body can give a clear view to how much the drug is affecting one’s brain at any given time. But cannabis works differently. The height of your intoxication isn’t the moment when blood THC levels peak, as THC is fat soluble and moves readily from water environments, such as blood, to fatty environments. This may become tricky when it comes to one’s legal rights and decisions to get behind the wheel with cannabis still in their system, as a non-impaired person’s blood may still tell a story that differentiates from one’s actually ability to drive.

Throughout the U.S., police officers will call in drug recognition experts to determine whether or not a driver is under the influence of cannabis. Many officers have also been trained in horizontal gaze nystagmus, one of the three main components of field sobriety tests, which is the involuntary jerking of one’s eye when it gazes to the side, which is often used as evidence in DUI cases.

If a driver does not show any signs of driving under the influence but is still charged with a cannabis DUI because of certain tests or evaluations, such as THC levels from a blood test, specific steps should be taken when it comes to your legal rights. It is strongly encouraged to write down everything you can about the traffic stop if you plan on fighting the charges against you. After an administrative hearing, which most states will act on quickly after an arrest for driving under the influence of cannabis, an evidentiary hearing can occur when the accused’s lawyer files motions to challenge the evidence against you.

In Pennsylvania, since the new state medical marijuana laws were passed in 2016, the conversation has been ongoing regarding what constitutes a DUI. Criminal defense attorneys have argued that if a person can show they have a valid prescription for cannabis, it could be an exception to DUI law. However, driving under the influence in any case is illegal, and the evidence of a prescription would be more helpful for what shows up on a THC blood test, if in fact the driver was not impaired whatsoever while operating a vehicle. Currently, the Pennsylvania legislature has criminalized driving while a cannabis metabolite — which can linger in a person’s system for weeks after ingestion — is present in an operator’s system, even if the driver is absent of any impairment. There is, however, a certain threshold for concentration of illicit metabolites that must be met before the results of a chemical test indicating cannabis metabolites can be introduced as evidence.

Earlier this year, Pennsylvania State Police urged the State to update its DUI laws, arguing that the laws need to be updated for medical marijuana users who are taking it in small doses. One trooper argued that they need to “strike a balance between compassion and safety,” but currently, as the law states, you cannot have any cannabis in your system while driving in PA. While there are trained officers who can administer horizontal gaze nystagmus tests, and those who are considered drug recognition experts, the tests and the results are hardly fail-safe as they are currently administered and tested.

In certain states, an individual suspected of being under the influence of cannabis has the right to refuse to submit to a chemical test, and no penalties or sanctions apply for refusing to submit to chemical testing for drugs. In states such as Arizona and Rhode Island, a registered medical marijuana patient shall not be considered under the influence solely for having cannabis metabolites in their system, but by simply operating a vehicle, a person gives consent to testing. But that’s certainly not the same everywhere. In many states, PA included, if you’re suspected of driving under the influence of cannabis — even if said person is medically and legally prescribed to use cannabis — you can be arrested on the spot and be forced to face legal consequences later.

The legislature still needs to address many of the laws surrounding cannabis and driving laws, but in the meantime, it is considered dangerous to get behind the wheel of any vehicle while impaired under the influence of cannabis, even if one has a prescription. In a situation where a legally prescribed cannabis user gets behind the wheel while completely sober, they should make sure to understand their rights and the law in the event they are pulled over and suspected of being under the influence.