There is a big difference between a California DUI for alcohol and a California DUI for drugs, even marijuana, San Diego DUI lawyers point out. Laws, evaluations, procedures, testing and approaches differ between the drinking motorist and the drug-using driver, San Diego DUI attorneys remind.
The San Diego Union-Tribune recently looked at the issue in this article: "How stoned is too stoned
"Everyone knows the rules surrounding drunken driving. The legal limits are clearly defined and well-established by science. But how do you know when someone’s too stoned to drive?
It’s a critical question given the spread of legal marijuana use, but there’s no easy answer. Measuring impairment from cannabis, it turns out, is difficult and scientifically complex.
Drugged driving is on the increase. Nearly twice as many California drivers tested positive for drugs than alcohol in a recent study, and 30 percent of drivers in the state’s fatal crashes tested positive for an impairing drug, according to state officials.
Prosecutors and law enforcement officials say what’s needed is a DUI-like benchmark to provide drivers with a clear limit and prosecutors with an objective standard that can be used in court. Six other states have come up with firm limits on THC blood levels — measuring the psychoactive ingredient in marijuana — and 14 others have established zero-tolerance laws. But California lawmakers have yet to find the right yardstick.
San Diego City Attorney Jan Goldsmith, who used to be a Superior Court judge, said there’s a “huge difference” trying to prove alcohol DUIs, which sets a clear legal limit at 0.08 percent blood-alcohol level, versus drug DUIs.
“You don’t have the 0.08 level, which is a somewhat objective level that can be proven. … And you have to have officers who are particularly trained to look for this, and how do you prove this in front of a jury?” he said. “I have seen the impact on jurors particularly when it is prescription drugs, which is even more difficult.”
With alcohol, it’s much easier.
Alcohol impairment depends on the level of alcohol in the brain, which can be measured by Breathalyzer tests or determined by a simple blood test. The impact can be predicted with a simple guideline that compares a person’s weight to how many drinks they’ve consumed over two hours.
Scientists disagree on how best to measure marijuana impairment.
Studies show marijuana intoxication is shorter, with concentrations of THC peaking about 13 minutes after smoking, while impairment is at its highest levels about 20 to 40 minutes after smoking. Critics say THC can be detected in blood and urine after a driver is no longer impaired.
Opponents of setting THC limits in the law say California’s existing law, which focuses on driver impairment, is a good way to keep intoxicated drivers off the road. They say frequent users will always have some level of THC in their blood, whether they are impaired or not.
“They want something they can convict somebody on and it seems to me until we know how to measure cannabis intoxication chemically and until we know what the level of driving impairment that corresponds to a given dosage of cannabis, it is premature to rush into creating crimes,” said UCLA public policy professor Mark Kleiman, the so-called “pot czar” who helped advise the state of Washington on policy issues related to the legalization of recreational marijuana use.
Kleiman said perhaps a better rule might be to make it illegal for anyone to drive within a few hours of using cannabis.
California lawmakers have twice introduced bills focused on the amount of THC in a driver’s system, but the bills have died in committee.
A zero-tolerance bill introduced in 2012 would have made it a crime for a person with any level of cannabinoids or synesthetic cannabinoid compound in their blood or urine to drive a vehicle. This year, Assemblyman Jim Frazier, D-Oakley, carried a new version that would have set intoxication limits for marijuana and a number of other drugs, including cocaine, heroin and methamphetamine. Using Nevada’s law as a model, it would have made it illegal to have 2 nanograms of THC per milliliter of blood.
Frazier said he’d like to see California be proactive in setting firm limits, especially with recreational marijuana use legal in Colorado and Washington and voters in Oregon, Alaska and Washington, D.C. recently approving similar decriminalization measures.
“At some point if California does legalize marijuana also, shouldn’t there be an opportunity for law enforcement to say you aren’t safe on the road right now, as they would a drunken driver, and be able to say we need to get you off the road?” Frazier said.
Prosecutors say having a clear standard would make it easier for them to present cases to jurors. For now, they rely on the expertise of toxicologists and arresting officers, some of whom are specially trained as drug recognition evaluators.
The City Attorney’s Office this year changed the way it approaches drugged driving cases in an effort to prepare stronger cases and secure stiffer sentences. It will now have one prosecutor and one investigator familiar with drug toxicology and the signs of drugged driving handle its prosecutions, thanks to a $263,000 state grant.
Previously, the cases were spread out among many lawyers in the office from arrest through sentencing.
Goldsmith said the grant should help prosecutors anticipate defense tactics and better use drug toxicology to prosecute the cases.
Even as lawmakers debate changing the legal landscape, others are working to provide better tools to those on the front line. Washington State University is working to develop a breath test that will detect recent marijuana use, while several police agencies in California have started using cheek swabs to test saliva of motorists suspected of being under the influence of marijuana or other drugs. The roadside testing kits provide far quicker results than waiting for labs to process blood samples.
“I do not believe it has actually gone through the courts yet to be either verified as good or bad,” said Chris Cochran, a spokesman with the California Office of Traffic Safety, which funded the pilot program.
For young people growing up in a society where marijuana use is growing and being decriminalized by some jurisdictions, it doesn’t matter what laws are on the books if they don’t realize that driving stoned is dangerous, said Jim Lange, director of San Diego State University’s health promotion department, who is working as a consultant on a national drugged driving awareness campaign.
“A lot of people don’t understand that you can be impaired by drugs in a way that make you a risk on the road so they think it is safer to use marijuana or things like that,” Lange said. “Some literally feel it improves their driving to use some of the drugs — so we want to expose folks to the evidence that says otherwise.”