September 17, 2014

Judges examine the myths of marijuana and driving

Two states have legalized recreational marijuana use, 20 states and the District of Columbia have laws allowing medical marijuana and many other states are moving to pass similar legislation into law.

“As more states go down the path to legalization of marijuana, we will have more drivers on the road impaired by the drug,” said retired Judge Peggy Hora of the Superior Court of California. “We need to meet the challenges that these cases will present.”

In the American Bar Association webinar “Marijuana and Driving: Debunking the Myths,” sponsored by the Judicial Division, Hora and other presenters attempt to answer questions related to “drugged driving,” such as: What kind of evidence is prevalent in demonstrating the effects of THC, the ingredient of marijuana that causes psychological changes, on psychomotor skills and driving? How is THC detected? Is a medical marijuana card an affirmative defense?

“The purpose of this webinar is to expose the myths that surround marijuana and driving,” said moderator Judge Earl Penrod of Gibson County Superior Court in Indiana. “Because these issues are just emerging, there are an incredible number of myths concerning the subject. You may need to unlearn what you think you know. There is a great deal of disinformation, especially in the popular media.”

Many physical indications of being high are the same ones indicating drunkenness — poor balance, slurred speech and watery eyes — as are some of the driving behaviors — crossing lane dividing lines, failing to maintain a steady speed or not moving when a red light changes.

“We see the issue of marijuana and driving regularly in my courtroom, but the technology isn’t the same regarding detection,” Penrod said. “There’s an entire protocol for alcohol detection, but there’s no simple breath test for marijuana. And some who test positive for alcohol do not receive follow-up tests for other drugs.”

Less than 1 percent of the nation’s police officers are trained to do sobriety tests for drugged driving. Tests for THC, the principal psychoactive substance found in marijuana, are typically taken hours after an arrest. While THC dissipates from the blood quickly, THC metabolites can remain for days.

States with zero-tolerance laws differ on whether the presence of active or inactive THC metabolites are permissible. For example, Idaho, Arizona and New Mexico say that even the presence of inactive metabolites violates their laws against driving under the influence of drugs, while Michigan says it does not.

“The biggest misnomer about marijuana, in my opinion, is the rate of THC dissipation in the body,” Denver County Court Judge Mary A. Celeste said. “Unlike alcohol that goes directly to the bloodstream, THC travels to the brain and the dissipation in the body differs.”

Regarding the complicating factor that marijuana has become 175 percent more potent in recent years, Hora said, “This is not your mother’s marijuana.”

For more information on the legal and ethical issues surrounding new state marijuana laws, check out this story about the ABA webinar “Lawyer Ethics and the Business of Marijuana.”