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The problem with America’s marijuana DUI laws

marijuana DUI

marijuana duiGagan Singh rolled a “fat blunt” before he hit the slopes at Lake Tahoe on a sunny Wednesday morning.

By the end of the day, he needed a refill, so he drove to Reno and stopped at one of the local medical marijuana dispensaries. With his Patagonia jacket and bleached-blond man-bun, Singh was eager to head to his hotel and smoke.

The only reason he wouldn’t be smoking while driving to the hotel was because he believes Nevada cops are stricter than the ones in the Bay Area.

“Yeah, I roll my blunts while I’m driving. I smoke while I’m driving,”’ said Singh, 26, who owns a logistics business and a “party bus” in Oakland, Calif. “I don’t get high after two blunts. I just get tired and lazy.”

With the passage of recreational marijuana in November, Nevada is grappling with questions of how to handle the issue of driving while stoned. And while driving high is still illegal, determining what exactly constitutes “high” is not as easy as it sounds.

Among states with legal recreational marijuana, Nevada has the strictest limit on how much of the chemical THC can be in the bloodstream — the weed equivalent of blood-alcohol content — before the driver is considered impaired. Nevada’s limit is even lower than the federal standard for Department of Transportation employees.

But catching drugged drivers has become more complicated since recreational marijuana became legal in January across the state.

No real-time, accurate test exists.  Officers have no accurate Breathalyzer test; blood, urine and saliva tests exist but are imperfect.

On top of that, no scientific evidence backs up that a specific amount of marijuana in a person’s system means impairment. That means that limits for marijuana similar to those for alcohol use can be problematic.

“You have people that are just baked, they have that Spicoli persona and yet they ace the driving test. You have others who are totally sober and they flunk that blood test,” said Chris Halsor, a former Colorado prosecutor currently serving as Nevada’s temporary traffic safety resource prosecutor.

Nevada law says that anyone with 2 nanograms of marijuana in their system while driving is impaired.

Critics of the limit point out that it’s so low that people who have smoked marijuana in the distant past but are not impaired could be convicted of DUI under the current law.

However, advocates of the limit point out that driving under the influence cases involving marijuana are already difficult to prove and a limit is necessary.

Despite the inconsistencies, states must adapt, Halsor said. It’s an issue every state that legalizes marijuana faces, finding varying solutions.

“You have to go into every case being able to prove impairment without toxicology,” Halsor said.

 A legal puzzle
The question of marijuana DUIs has been at the forefront of bipartisan discussions among lawmakers since Nevadans voted in November to legalize recreational marijuana. Anyone 21 and over can possess up to 1 ounce of recreational marijuana, even though it remains a federal offense.

Medical marijuana has been legal in Nevada since 2000, and recreational marijuana officially became legal as of Jan. 1, though it is still a misdemeanor to drive under the influence of marijuana and can be a felony depending on circumstances.

Just as Nevada has a .08 blood alcohol limit, the state also has a 2 nanograms per milliliter of blood limit for marijuana. Colorado and Washington’s limit is 5 nanograms.

Most states and Washington, D.C., that have legalized recreational marijuana — California, Oregon, Massachusetts, Maine, and Alaska — have no set limit. States without set limits also establish that impaired driving is illegal and can be proven by a defendant’s behavior and statements at the time of arrest.

 “States are trying to figure out what is a fair nanogram limit – what should they use for guidance, and should we have a nanogram limit? Neither is good, right? I don’t think it’s appropriate to institute a rule that doesn’t work. I don’t understand the point of having a limit if that doesn’t tell you what you need to know,” said Dr. Ryan Vandrey, associate professor of behavioral pharmacology research at Johns Hopkins University Medical School in Baltimore. “If you are going to punish people for not being under the influence of a drug that you just legalized, that’s not fair. You can’t take corrective action.”

While it would seem logical to model drugged driving laws after existing drunken driving laws, marijuana is a tricky substance.

“Alcohol is the exception. Alcohol is the only drug that we can immediately determine whether someone is acutely impaired on the roadside,” said Vandrey. “There are lots of drugs that we don’t have reliable tests for – cannabis is the normative.”

Vandrey shakes his head at the states, including Nevada, that still have a set “limit” written into their laws because, if those limits cannot prove impairment, he said, what’s the point?

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