DUI BLOG

I’ve been writing for some time now that roadside drug tests for suspected DUI of drugs stops are not far off. The increase in drug usage and the growing acceptance of marijuana has law enforcement agencies and law makers clamoring for a device that can quickly and accurately test whether drivers are under the influence of drugs. While current devices are not quite yet capable of telling law enforcement how intoxicated a driver might be, they can say whether a driver has drugs in their system. And San Diego became the latest city to use such devices roadside.

Last week, San Diego police began using roadside oral swabs to test drivers for the presence of marijuana, cocaine, methamphetamine, amphetamine, methadone, opiates, and benzodiazepines. The oral swabs cannot, however, test the amount of drugs in the driver’s system nor can it test for the driver’s level of intoxication.

The inability to test for quantity of drug or intoxication is legally important because, under California law, a person can only be arrested, charged, and convicted of a California DUI if they are “under the influence of a drug.” This means that a person’s physical or mental disabilities are impaired to such a degree that they no longer have the ability to drive with the caution characteristic or a sober person of ordinary prudence under the same or similar circumstances.

With the swab test only able to indicate the presence of one of the drugs listed above, a prosecutor must still prove that a person was not driving with the care of that of a sober person. This is done with officer testimony of poor driving patterns, failure of field sobriety tests, and visual symptoms of drug impairment.

Although many, including Mothers Against Drunk Driving, often forget, the mere presence of drugs in a driver’s system does not necessarily mean that they are driving under the influence. Tetrahydrocannabinol (THC), the active component in marijuana, for example, can stay in a person’s system for up to several weeks after the smoking or ingestion of marijuana. While, the THC may still be present, the person may no longer be “under the influence.”

San Diego began using the oral swab test, called Dräger 5000, after officials met with authorities in Colorado which legalized recreational marijuana in 2014.

Under San Diego protocol, law enforcement will only request the oral swab after they suspect that the driver might be under the influence of a drug. And before that, the officer must have probable cause to even stop the driver in the first place.

Like the preliminary screening alcohol test (PAS) test in DUI of alcohol cases, the oral swab test is also optional. And like the PAS test, it is never suggested that a driver voluntarily submit to the test. Never give law enforcement and prosecutors any more information than they already have.

Only after a person is arrested must they submit to a chemical test and if law enforcement suspects that a person was driving under the influence of a drug, they’ll have to take a blood test.

According to a study by the California Office of Traffic Safety, 38 percent of drivers killed in vehicle collisions during 2014 tested positive for either legal or illegal drugs. This is up six percent from 2013. While this may seem like a high number, testing positive does not necessarily mean that those drivers were actually under the influence and impaired by a drug.

Although drugged driving is and will always be a problem, we can’t continue to arrest people for driving for the mere presence of drugs in their system because presence does not mean impairment.

With the legalization of recreational marijuana in California, lawmakers are pushing efforts to pass new legislation regarding marijuana, particularly when it comes driving after marijuana use. Tom Lackey (R-Palmdale), who is no stranger to introducing anti-DUI laws in California, has introduced a bill that would create a drugged driving taskforce under the supervision of the Commissioner of the California Highway Patrol.

“The bill, AB-6, is a reasonable approach forward to address our fight against drugged driving,” Lackey told the Los Angeles Times. “The urgency of this should be very clear to all of us.”

The bill, which was proposed by the California Police Chiefs Association and introduced by Lackey, if approved, would add a completely new section to the current California Vehicle Code.

The Legislative Counsel’s Digest for the bill says the following:

“This bill would require the commissioner to appoint, and serve as the chair of, a drugged driving task force, with specified membership, to develop recommendations for best practices, protocols, proposed legislation, and other policies that will address the issue of driving under the influence of drugs, including prescription drugs. The bill would also require the task force to examine the use of technology, including field testing technologies, to identify drivers under the influence of drugs, and would authorize the task force to conduct pilot programs using those technologies. The bill would require the task force to report to the Legislature its policy recommendations and the steps that state agencies are taking regarding drugged driving.”

The task force would include representatives from local law enforcement, prosecutors, various representatives from the marijuana industry, representatives from the pharmaceutical industry, representatives from the Office of Traffic Safety, representatives from the National Highway Traffic Safety Association, and licensed physicians.

The Assembly Public Safety Committee unanimously recommended the bill after a hearing in which Karen Smith, a teacher from Antelope Valley, provided emotional testimony about how her husband had been killed a driver who was under the influence of marijuana.

“He was just 56 years old. We had been married for 34 years,” said Smith. “It was all wiped out in just one second by a person who chose to drive under the influence of THC.”

There’s no question that marijuana affects driving ability. Exactly how and to what degree, is up for debate. What is certain however, is that there is a very important difference between being under the influence of marijuana and having THC in your system, and the task force, if AB-6 passes, had better understand the difference.

It is well known that the "per se" limit for how much alcohol can be in a person’s system is 0.08 percent blood alcohol content. With alcohol, there is a fairly strong correlation between blood alcohol content and intoxication. In other words, there is a high probability that a person with a 0.08 blood alcohol content is feeling the effects of alcohol intoxication such that they cannot operate a vehicle as a reasonable and sober person would.

The same cannot be said about the intoxicating effects of marijuana use and the amount of THC in a person’s blood. Unlike alcohol, THC is fat soluble which means that it leaves the body at a much slower rate. In fact, chronic users of marijuana can have THC in their blood weeks after use. Therefore, someone who has smoked marijuana three weeks ago can still be arrested in states with a "per se" THC limit even though they are no longer under the influence of marijuana and perfectly sober.

A recent decision by the Arizona Court of Appeals held that medical marijuana patients who have been arrested for driving under the influence of marijuana can fight the charges by arguing that they were not stoned enough to drive.

In 2013 Nadir Ishak was stopped by Mesa police when they saw his vehicle drift into another lane. The officer who arrested Ishak testified that Ishak admitted to using marijuana that morning and that his eyes were bloodshot and watery.

It was later determined that Ishak had a concentration of 26.9 nanograms of tetrahydrocannabinol (THC) per milliliter of blood.

Ishak was charged with driving while impaired and driving with marijuana in his system. During trial, Ishak wanted to inform the jury that he possessed a state-issued medical marijuana card at the time of his arrest. The trial judge, however, denied his request. The trial judge also determined that Ishak bore the burden of proving that he was not under the influence. Ishak was subsequently convicted and sentenced to 90 days in jail.

Ishak appealed arguing that the denial prevented him from having a fair trial.

The Arizona Court of Appeals, in a 2-1 decision, agreed with Ishak and concluded that the jury should have been made aware that Ishak was medical marijuana user. Additionally, the court also concluded that prosecutors, not defendants, must prove that a medical marijuana license-carrying driver was actually under the influence of the marijuana, not merely driving with the drug in their system.

In 2010, Arizona voters approved the Arizona Medical Marijuana Act which does not absolve stoned drivers from being charged for driving under the influence of marijuana. However, the Act also said that a medical marijuana user cannot automatically considered under the influence of the drug “solely because the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.”

What’s more, the Arizona Supreme Court in 2015 held that medical marijuana users charged with a DUI can argue “that the concentration of marijuana or its impairing metabolite in [his or her body] was insufficient to cause impairment.”

The prosecutor in Ishak’s case argued that the Arizona Medical Marijuana Act requires medical marijuana users who are arrested on suspicion of driving under the influence prove through expert testimony that the THC in their system was insufficient to cause impairment. He also argued that it is irrelevant whether Ishak was actually impaired.

What ever happened to the fundamental canon of American criminal jurisprudence, “innocent until proven guilty?” Although I can’t say that it surprises me that a DUI prosecutor would actually argue “guilty until proven innocent.”

Fortunately, however, Arizona Appellate Judge Diane Johnson, who wrote for the majority, disagreed with the prosecutor.

"Nothing in the statute … requires a cardholder to present expert testimony (or precludes a cardholder from offering non-expert testimony) on the question of whether the cardholder was impaired due to THC,'’ wrote Johnson. "And, according to evidence here, there is no scientific consensus about the concentration of THC that generally is sufficient to impair a human being.”

I’m happy to say Judge Johnson got it right.

As many of you now know, California passed proposition 64 this past November making recreational marijuana use and possession legal. According to Senator Jerry Hill, D-San Mateo, and Assemblyman Evan Low, D-Campbell, proposition 64 contains a loophole that they intend to close.

Last week, the legislators introduced Senate Bill 65 which will criminalize smoking marijuana while driving. Although Proposition 64 legalized the recreational use and possession of marijuana, it still made it illegal to have an open container of marijuana in a vehicle. Proposition 64 did not, however, address the use of marijuana while driving according to Hill and Low.

If you recall from previous posts, Hill has been known to introduce legislation aimed at preventing drunk driving. Last year he passed a law requiring ignition interlock devices for convicted drunk drivers who wished to reinstate their licenses.

“I have a real passion for solving our impaired driving in California from substance abuse,” Hill said. “I don’t want to go in a positive direction on one end and open up the door for deaths on the other end.”

One complaint that opponents have to Senate Bill 65 is that it also bans consumption of cannabidiol, the component of marijuana which is often used by those suffering from chronic pain or to alleviate the symptoms associated with cancer. Cannabidiol does not contain THC (tetrahydrocannabinol), which is the chemical in marijuana that causes impairment.

As I see it, another problem with Senate Bill 65, if passed, is that if a person is arrested for driving while smoking marijuana, they will also inevitably be arrested on suspicion of driving under the influence of marijuana. While a person may have been caught smoking while driving, it doesn’t necessarily mean that they are “under the influence” of marijuana.

To be under the influence of marijuana, the person’s use of marijuana caused their mental or physical abilities to become impaired such that they can no longer drive a vehicle with the same caution of a sober person, using ordinary care, under similar circumstances.

While police can utilize field sobriety tests, if the person agrees, to assess whether motor skills are impaired, there is no way to determine how “high” a person is after smoking marijuana. As I’ve said in many previous posts, this is different from alcohol where these is a correlation between a person’s blood alcohol content and impairment. No such correlation exists with marijuana.

Therefore, if Senate Bill 65 is passed, a person arrested for smoking while driving not only faces misdemeanor charges under that law, but they can also inevitably expect DUI of marijuana charges as well.

You can be sure I’ll be keeping my eyes on the progress of this one.

In April of 2015 I wrote about Assembly Bill 1356, written by Assemblyman Tom Lackey from Palmdale, California, which would have allowed law enforcement to use a device similar to a breathalyzer that could detect the presence of marijuana and a number of other drugs in a driver’s system.

That bill however, failed to pass the Assembly Public Safety Committee the following May because of reliability concerns.

However, with the passing of Proposition 64 which allowed the use of recreational marijuana in California, Lackey who is a former sergeant with the California Highway Patrol, has introduced a new bill similar to that of the failed AB1356.

The newly proposed Assembly Bill 6 would allow tests using saliva samples taken from drivers suspected of driving under the influence. The test would let the officer know whether a driver has recently used a number of drugs including marijuana.

“The ballot initiative passed this year to legalize marijuana will result in more marijuana consumers on our state’s highways and roads,” Lackey said in a statement. “It is imperative that we invest in a broad spectrum of technologies and research to best identify marijuana-impaired drivers.”

The measure is supported by Chief Ken Corney, president of the California Police Chiefs Assn.

“Our federal partners have demonstrated the efficacy of oral fluid testing, and we look forward to utilizing the technology at a state level,” Corney said in a statement.

While the current devices referred to by Corney tests for the presence of drugs, it does not test for drug  quantity nor impairment of the driver.

There is an established correlation between blood alcohol content, specifically the legal limit of 0.08 percent, and alcohol impairment. Unlike alcohol, however, there is no such correlation between the presence of drugs and impairment. In other words, a person can have traces of drug in their system without being impaired by that drug.

Marijuana, for example, can stay in a person’s system for weeks following the smoking or ingesting of the marijuana and well after the person was intoxicated or stoned. The purpose of DUI laws is to prevent impaired driving, not to punish sober and unintoxicated people merely because they ingested drugs at some point in the past.

It is unclear how the presence of a drug may affect the subsequent arrest or DUI case since presence doesn’t necessarily mean impairment. Until we can establish a correlation with drugs including marijuana like we have with alcohol, namely the correlation between quantity and impairment, we shouldn’t be using pushing for laws like this.

Assembly Bill 6 will be brought up for a vote early next year.