Marijuana

Proposed Massachusetts Stoned Driving Rule Is Better Than Washington's but Worse Than Current Law

With a "permissible inference" based on THC levels, innocent people can still be convicted.

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massachusettsduilawyerblog.com

In a report issued last week, a legislative committee charged with considering the implications of marijuana legalization in Massachusetts says "there is no well-accepted standard for determining driver impairment from marijuana intoxication." The report's authors nevertheless recommend "establishing a legal limit for THC blood concentration that would support at least a permissible inference standard in court." That is the approach taken by Colorado, where it has proven more favorable to defendants than the per se rule in Washington, under which any driver who exceeds a specified THC blood level is automatically deemed impaired. But Colorado's approach is still scientifically unsound, making it easier to convict innocent people than the current law in Massachusetts. 

It seems strange that the legislators who wrote the Massachusetts report, after conceding that there is no scientific basis for tying the legal definition of impairment to a particular THC level, would recommend tying the legal definition of impairment to a particular THC level. They do not say what the level should be, possibly because that would only serve to highlight how arbitrary such cutoffs are. "Whereas the impairment effects for various concentration levels of alcohol in the blood or breath are well understood," the National Highway Traffic Safety Administration notes, "there is little evidence available to link concentrations of other drugs to driver performance." Hence "specific drug concentration levels cannot be reliably equated with a specific degree of driver impairment." 

That fact makes life more difficult for cops and prosecutors, which explains the appeal of a per se rule. But the same uncertainty makes a per se rule clearly unjust. The "permissible inference" approach aims to split the difference between a per se rule and current Massachusetts law, which requires the government to show a driver consumed enough of a drug to "reduce his ability to operate a motor vehicle safely by diminishing his alertness, judgment, and ability to respond promptly." Blood test results can be presented as evidence, but they are not conclusive. Colorado, by contrast, allows (but does not require) a DUI conviction based on nothing more than blood test results.

The THC cutoff in Colorado is the same as in Washington: five nanograms per milliliter. But while exceeding that level in Washington automatically leads to conviction, Colorado defendants can try to persuade jurors that they were not in fact impaired, and that distinction has proven decisive in many cases.

Consider Ralph Banks, who was pulled over in Lakewood, a Denver suburb, last March because of a broken headlight. The officer who stopped Banks noticed that he smelled of marijuana—which was not surprising, since he grows the stuff for Medicine Man, a state-licensed pot store in Denver—and asked him to perform roadside sobriety tests. The officer reported that Banks "failed to perform at a satisfactory level." He was arrested for DUI, and a blood test put his THC level at 7.9 nanograms per milliliter, well above the cutoff. He was nevertheless acquitted earlier this month.

Rob Corry, Banks' lawyer, says a physician who testified for the defense and the arresting officer, who is considered a "drug recognition expert," agreed that "marijuana affects every person differently." Although the officer said he was convinced Banks was intoxicated, there was no evidence of careless driving, and Corry was able to cast doubt on the validity of the roadside tests. "We established that the roadsides are generally designed for alcohol detection, which was not a factor in this case," Corry says. "Furthermore, performance on them is a subjective analysis. Much of it is touchy-feely garbage. Glassy eyes, nervousness, estimating 30 seconds with eyes closed and head back, etc. Police in Colorado (to their detriment) never videotape roadsides, so juries are left with analyzing the subjective memories of police officers' opinions about performance rather than objective evidence."

Banks did not testify, but he told the officer he had not smoked marijuana in four or five days. Corry says Banks had used a cannabis-infused muscle rub earlier that day. That could help account for for his THC level, which in any event was not especially high for regular cannabis consumers, even when they are not impaired. "The commonsense suggestion was made that frequent, experienced marijuana consumers understand how marijuana will impact them, better than novices," Corry says. It took the jurors just half an hour to acquit Banks.

"We have prevailed in numerous marijuana DUI cases around the state, both before and after the five-nanogram permissive inference standard was superimposed by the legislature," Corry says. "The [rule] lacks much validity, and some juries are smart enough to see through it." He says it is "challenging to overcome but not impossible."

While Colorado's approach is better than Washington's, Corry says, the pre-legalization standard, which was similar to the current law in Massachusetts, was preferable to both:

I am not optimistic that innocent people will not be wrongly convicted under this inference. Some juries (and all police and prosecutors) latch onto the five-nanogram number as if it is the same as the 0.8 [percent] blood alcohol standard….The previous system, though imperfect, worked better in sorting out the guilty from the innocent. Prosecutors had to come in with actual evidence of impairment. Other drugs that can cause impairment (such as prescription opiates) have no numerical standards, but it is still illegal to operate a motor vehicle while impaired by them. The difference is that the prosecution must actually prove their case through real evidence to prevail. Every person is different. Levels of impairment vary depending on many factors, especially a person's level of knowledge and experience with the particular drug.

Washington's per se rule was included in that state's legalization initiative as way of reassuring voters that legalization would be accompanied by efforts to prevent stoned driving. Colorado's initiative, by contrast, left the DUI law unchanged, and it was state legislators who enacted the current rule. In Massachusetts, the legalization initiative that is expected to be on the ballot in November likewise does not change the state's definition of DUI (known there as OUI, for "operating under the influence"). The Special Senate Committee on Marijuana, which issued last week's report, is urging Massachusetts legislators to follow Colorado's example. It says "methods and procedures for determining driver impairment due to marijuana, including establishing a legal limit for THC blood concentration that would support at least a permissible inference standard in court," should be "adopted by statute and in place before any effective date of marijuana legalization." If the THC limit is supposed to be scientifically sound, that goal would delay legalization indefinitely. 

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  1. innocent people can still be convicted.

    Just as planned.

    Kekekekekeke

    1. “Whereas the impairment effects for various concentration levels of alcohol in the blood or breath are well understood,”

      And yet you still insist its necessary to set the legal limits ridiculously low.

      1. If they only punished reckless driving and causing a accident they couldn’t bring in all that sweet fine money.Then there’s the roadblocks they use to look for drugs and petty infractions..Why don’t you want the ‘heroes to have their ‘tools’?

        1. I just don’t want the police to have ‘the tools they need to keep up safe’ because I hate America.

          1. So,your a terrorist? Damn,first Apple,now H&R..

            1. I think H&R was anti-cop before Apple’s transgressions against authority.

              1. I’m not anti cop,the 1% of good cops are ok in my book.

            2. Nope. Just a Nazi. A grammar Nazi.

              Off to the camps with you.

              1. I’m not ,but, that ‘tool’ word they pull out pisses me off.The Ohio Sate Patrol use that word every time they want expanded powers.

                1. BTW,the OSP ‘troopers’ make a lot of overtime going to court.They get three hours OT even if they are not needed .

  2. The *standard* is to make the threshold so low that the authoriteh can make as many busts as possible doing as little policing as possible.

    1. Hey,solving real crimes can be hard work .

  3. Distracted driving is dangerous too. Why doesn’t some busy body outlaw: bumper stickers, billboard signs along roads, electronic signs that say shit like ‘click it or ticket’ or ‘drive drunk go to jail’, and neon or other large lighted or printed signs that identify a place of business or such. These are all so distracting and hence dangerous.
    Furthermore, cities that do not properly place road signs, street name signs or median stripes would be severely fined.
    I’m mean, we need to make our world as safe as possible!
    And if drugs are kept illegal than no one can drive stoned because prohibition is so effective. Because, like right now before legalization, no one is driving stoned. No way.

  4. Colorado defendants can try to persuade jurors that they were not in fact impaired

    Guilty until proven innocent.

  5. It seems strange that the legislators who wrote the Massachusetts report, after conceding that there is no scientific basis for tying the legal definition of impairment to a particular THC level, would recommend tying the legal definition of impairment to a particular THC level.

    Jacob – that’s because you’re being kind and not saying that Massachusetts is run by idiots.

    1. The Honorable William J. Le Petomane agrees.

      Everybody give me a harumph!

      1. Blazing Saddles just keeps relevant,Aye.

  6. In high school I remember going to my friend’s band practice. We all toked up – the crappy songs certainly sounded better that way – but I ended up driving a few friends back home. Holy shit that was some strong ass weed. I saw a cop car too and went to jam on my brakes out of pure paranoia. Luckily the cop didn’t seem to notice and just kept on going. I don’t know if my driving was impaired but it certainly felt that it was.

    1. To be fair, everyone hits the breaks when they see a cop car, because everyone is pushing the speed limits. They probably tune that out because the effort for a 1-5mph speeding ticket isn’t worth it.

    2. The whole thing about marijuana impairment is dumb anyway. The worst thing someone high on pot is going to do behind the wheel is drive too slowly and possibly forget where they are going. They’re not going to speed or drive recklessly like someone who has been drinking. Equating the two is nonsense.

      1. No man! I like totally saw some kids run over a baby in a carriage left in the path of a fast food restaurant drive-through! They didn’t see that abandoned baby because they were high!

        Then there’s this one time where this kid hallucinated that his dog was talking to him and was disappointed that he was using drugs so he stabbed the dog – turned out to really be his mother!

        1. Then there’s this one time where this kid hallucinated that his dog was talking to him and was disappointed that he was using drugs so he stabbed the dog – turned out to really be his mother!

          That son of a bitch.

          1. True story,I had a bad case of the flu years ago.Ran a fever for 5 days.Had waking nightmares and swore my 2 labs were talking to me one day.

            1. Don’t just leave us hanging like that! What’d they say?

      2. It’s always about revenue. Safety is always about inventing new ways of taxing you. People have been driving stoned for years and NOW there’s a standard of impairment? Of course, before they would get you with possession, so now if it’s legal, they have to make up for the *lost* revenue and when they start taking in more and more dough, they’ll wonder why they pushed against legalization in the past.

        1. I think it’s more that because the stuff will be legal, then of course more people will use it. That will lead to more people driving after using, and that of course means legislators must do something. Even if it isn’t based upon science or anything rational, they must do something. Because doing the wrong thing is better than doing nothing.

          1. That plus now that its legal there will be all sort of strains of super-super weed.

            1. M-O-N-S-A-N-T-O!!!!!!!!!!!!!!

      3. Driving too slowly for conditions is dangerous. This stupid objection needs to stop. You’re not arguing what you think you are.

  7. “…latch onto the five-nanogram number as if it is the same as the 0.8 [percent] blood alcohol standard…”
    .8 or .08 eh – what’s the difference
    numbers are hard

    1. Either way – it gives waaaaaaay to much credit and legitimacy to the .08 number which is mostly pulled out of MADD’s arse.

    2. My sister had a nanogram and the doctors found a minute amount of cancer.

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