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Taking the High Road: Nevada’s Cannabis DUI Standard is Arbitrary

By Frank X. Mullen

Steve, a medical marijuana patient from Reno , broke out in a sweat when a Nevada State Patrol officer pulled him over for expired registration tags on a cold night in April.

The 62-year-old retired machinist, who uses cannabis to treat post-traumatic stress disorder and did not want his last name published, imbibes about 20 milligrams of eatable cannabis two hours before bedtime as a sleep aid and for arthritis pain management. That means the next day, when the intoxicating effects of the drug have long worn off, the chemicals in marijuana are still swimming around his system. Even if he were to abstain completely, it would be weeks before the traces of the drug vanish from his bloodstream.

“Every day, I’m driving around with probably enough traces of pot in my system to get busted for DUI,” Steve says. “I’m not high, don’t feel any effects at all, but the law has nothing to do with that… It’s numbers some one made up just to have something to put in the law.”

Steve is right. There is no scientific evidence or general agreement as to how much THC (the chemical that gets users “high”) or its “metabolite” (the inert chemical that THC turns into within the body) is enough to cause impairment. State lawmakers have used their own judgment to set DUI limits for cannabis and the result is an arbitrary patchwork of laws and policies. It’s possible for someone who ingested the weed days or even weeks prior to a blood test to be convicted of driving under the influence.

“There’s really no defense,” says Nicholas Wooldridge, a criminal defense lawyer at Wooldridge Law in Las Vegas . Absent a technical violation in a traffic stop, such as errors in the blood draw or other factors, a guilty verdict is a slam-dunk for the prosecution, he says. “The majority of the time (such cases) is indefensible. It’s like a mathematical equation. If you’re over the legal limit, you’re done. … It’s bullshit.”

He mentioned a case where a medical marijuana patient was involved in a fatal accident and the mandatory blood test detected high metabolite in his system even though he hadn’t imbibed any weed in the previous 24 hours. There was no evidence of reckless driving or impairment. Nonetheless, the man was charged with felony DUI causing death.

For alcohol, there is a clear, national standard. If your blood alcohol content is 0.08 percent or higher, you’re considered too impaired to drive safely. That limit is supported by mountains of research. Not so with cannabis. “There are things you can do stoned that you could never do drunk,” Wooldridge notes. “Marijuana is a completely different type of drug than alcohol.”

Yet, states treat pot like alcohol in their impaired driving statutes. Nine states have “zero tolerance” DUI policies, which mean that detection of any trace of THC or its metabolite in a driver’s blood sample is de facto proof of guilt. Five states – including Nevada – have specific limits for THC and its metabolite. Nevada ’s THC standard for DUI, like Ohio ’s, is 2 nanograms of THC or 5 nanograms of the metabolite. Montana , Washington and Colorado put the standard at 5 nanograms of THC, while Pennsylvania has a 1 nanogram limit. California , though, doesn’t set a THC limit. There, prosecutors must show evidence of a driver’s intoxication or impairment.

With all the different standards and disagreements over what constitutes impaired driving “the Nevada Legislature needs to revisit this thing,” Wooldridge says.

Has legalization resulted in more DUI arrests or vehicle crashes as legalization opponents predicted? Nevada doesn’t yet have a system in place to track different kinds of DUIs, but a report last year by the Colorado Division of Criminal Justice showed that DUI cases in that state were down 15 percent from 2014 (the year the state legalized pot) to 2017. The study showed the percentage of Colorado State Patrol citations with marijuana-only impairment has stayed steady, at around 7 percent. The percentage of citations “with any marijuana involvement” rose from 12 percent in 2012 to 17 percent in 2016, and then dropped to 15 percent in 2017.

A study last year by the National Highway Traffic Safety Administration concluded marijuana users were about “25 percent more likely” to be involved in a crash than drivers with no evidence of marijuana use. However other factors – such as age and gender – may account for the increased risk among marijuana users, the report notes.

Steve, meanwhile, got a warning in lieu of a ticket during his Interstate-80 traffic stop. His car had a current registration, but he says he forgot to attach the new sticker to his license plate. But he says the possibility of getting a DUI based on days-old cannabis use worries him every time he gets behind the wheel. He hopes that once more states (and someday the federal government) legalize marijuana and more research is done, the laws eventually will be based on science and not lawmakers’ uninformed guesses.

“I’m not holding my breath,” Steve says. “I’m sure it will be a long time coming.” For now, he says he will focus on being a careful driver rather than abandon his use of medical weed. “It does a lot of good,” he says. “It made a big difference in my life.”