Does Legalizing Marijuana Mean You Can Drive Stoned?

As medical (and recreational) marijuana becomes ubiquitous, how will states tackle high drivers?

Photo Illustration by Sarah Rogers/The daily BEast

As someone who’s decided it was okay to drive after one too many joints, I know it’s a bad idea. Reaction time can slow, tiredness can ensue, and other aspects of your perception can make it unsafe to operate a vehicle. Many states are currently trying to tackle how to define when someone is too high to drive, and Hawaii is the latest to join the conversation.

Hawaii has decided it’s time to figure out when someone has smoked too much marijuana to operate a vehicle by requesting the state’s Department of Health study if there is a certain level of highness that is acceptable for the road. How high is too high? One of the more controversial policies the state could adopt, and one many states have adopted, is deciding if there’s a certain level of THC in the blood that indicates intoxication.

Washington and Colorado have policies dictating that anyone who registers five nanograms of THC per millimeter of blood is intoxicated. Pennsylvania has a policy of one nanogram. States like Arizona and Oklahoma have zero tolerance polices, meaning anyone who registers as having THC in their system while driving is violating the law. Don’t even go near a joint in Arizona or Oklahoma. Don’t even look at one.

If Hawaii follows any of these examples, many argue it will be criminalizing driving for medical marijuana patients and recreational users alike.

“Any state that has a zero tolerance limit is making a big mistake…The biggest problem with THC limits right now is they’re scientifically unsound,” Jeff Wilson, an attorney for McAllister Law Office in Denver, Colorado, told The Daily Beast. That law firm has handled many marijuana-focused cases, and he said they’ve discovered the science is very unsettled around how much THC someone has to have in their system to be intoxicated.

Wilson pointed to a case his law firm handled where a woman who was a medical marijuana patient had been tested at 25 nanograms per millimeter in her blood when she was driving, and the case ended up with a hung jury. That’s because the law firm was able to test her in their office and found due to the frequency in which she smokes, she’s constantly in the ballpark of 25 nanograms. She claimed she hadn’t even smoked the day she was pulled over.

That’s the issue. Marijuana stays in your system for a long time, because of how the body metabolizes it, which means someone could have smoked yesterday and test for over five nanograms today. A urine test will detect marijuana as long as 10 to 30 days after smoking, because it tests for THC byproducts, and a blood test that analyzes active THC molecules can detect marijuana consumption at least several days after the fact for regular users.

Wilson explained that alcohol levels peak once alcohol has been fully absorbed, while THC levels can reach peaks at several different times after someone consumes marijuana.

“It’s understandable and perfectly reasonable for a state to want to limit the possibility of intoxicated drivers on the road, and I think it is true that there’s a level of cannabis consumption in which people are undoubtedly intoxicated and impaired for the purposes of driving,” Wilson said. “The problem is the science [for identifying intoxication] is not well settled.”

Jolene Forman, a staff attorney for the Drug Policy Alliance, said states that create THC limits put medical marijuana users at risk. Many medical marijuana users have to consume relatively high volumes of marijuana regularly to treat their ailments, which causes them to be more likely to test positive for THC at any point in time.

“THC is metabolized so differently than alcohol and in such a slower manner that people who do need to use regularly for legitimate medical purposes run a huge risk if they drive,” she said. Forman pointed out that things like second hand marijuana smoke can also affect someone’s THC levels in a test, which wouldn’t happen with alcohol, unless someone was just throwing liquor at people.

Driving while high from marijuana may also be an issue that’s less worrisome than other ways people become intoxicated. “Prescription drugs are a way bigger problem on the road than marijuana,” she argued.

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The Daily Beast attempted to contact the National Institute on Drug Abuse and the White House Office of National Drug Control Policy for comment but did not receive a response.

“It is of equal concern to both police officers who are tasked with keeping our roads safe and to those who must use medical marijuana to have a clear understanding of when they should or should not operate a motor vehicle,” Rep. Cindy Evans, D-HI, told The Daily Beast. “For both citizens and law officers, clarity in any law makes it more effective and enforceable.”

Both Forman and Wilson believe the solution to this problem is to not set THC limits in the first place and to instead determine a range of factors for determining if someone is driving while intoxicated. Redness in the eyes, someone admitting to having smoked recently, their behavior, or the presence of a marijuana odor may be factors police could focus on when deciding if someone is sober.

Wilson said someone’s THC levels could be one of the factors looked at in a case, but it shouldn’t determine if someone was surely intoxicated or not. He pointed out that it was never legal to drive stoned in his own state of Colorado before the THC limit existed, and prosecutors would simply make the case that the defendant must have been high from marijuana for various reasons.

Forman also pointed out that there’s more to this problem than the marijuana users it affects directly. “We’re not only unfairly punishing people, but we’re wasting law enforcement resources,” she said, as police may be wasting time punishing people who are completely safe to drive. When the police are worried about someone who treats an illness with prescribed marijuana, they can’t really focus on other, more serious crimes.