When Washington voters legalized marijuana last month, they also accepted a new legal standard for toking and driving. Just as .08 per cent is a Washington driver’s limit for blood alcohol content, five nanograms per milliliter of blood is their new limit for active THC, marijuana’s psychoactive component.In most recreational users, active THC will drop below that threshold within two to three hours of using marijuana. But among the heaviest users, active THC levels may never drop below five nanograms, even when they’re not impaired. For some medical marijuana patients in particular, this technically means they have the potential for an automatic DUID conviction every time they get behind the wheel.
This predicament concerned Washington lawyer and medical marijuana patient Arthur West, who sought an injunction against I-502, Washington’s marijuana legalization initiative. West argued that I-502 violates the state constitution’s “single subject” rule, which requires proposed initiatives to have clear, descriptive titles. He argued that an accurate title would require a reference to the new DUID provisions. But West’s request was rejected by a judge who noted that police have always had the power to pull over and question drivers who they suspect of impaired driving.
Paul Armentano, Deputy Director of the National organisation for the Reform of Marijuana Laws (NORML), also said that driving under the influence of marijuana remains just as illegal as it was before the November elections.
“It’s true that there is now a lower burden of proof required for the state to gain a traffic safety conviction,” Armentano said. “But if a person is charged with suspected DUID and an officer is willing to testify that they were impaired, the state will still go forward with the conviction even if blood is drawn and the THC level is lower than five nanograms.”
In other words, drive carefully.
An Unknowable Number
Critics of the new THC threshold argue that it may be unconstitutional because the average citizen has no way of knowing when they’re over the five nanogram limit. The fact that there isn’t a practical way to test one’s own THC “makes this a due process problem,” according to Jeffery Steinborn, a Washington attorney and member of the NORML Board of Directors.
“How are you supposed to comply with the law within reason when you can’t even tell what your own THC level is?” Steinborn said. “That’s one of the main problems with this compromise: you know when you’re sober enough, but you don’t know when your THC is low enough.”
The lack of testing technology may be a worry for marijuana users, but it also makes it more difficult for police to catch drivers with illegal THC levels. There are no approved devices for roadside testing, so drivers must be taken to police stations to have their blood drawn. Active THC levels spike shortly after marijuana use and then drop rapidly, causing a delay that could let legally impaired drivers off the hook for mandatory DUID convictions.
Yet the biggest problem with the THC limit is the implication that marijuana-related impairment can be determined from a blood sample, according to Armentano. Marijuana’s effects on psychomotor performance are complex, and there is no scientific consensus on what THC concentration level makes a driver impaired.
“Recommendations for active THC limits run as high as 10 nanograms per milliliter to as low as two,” Armentano said.
How do you feel about driving in a state where weed is legal? Do you agree with THC limits for drivers? Let us know in the comments section below.
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