Could the driving-while-high bill cause a case of moral panic?
Grand Junction Sen. Steve King claims there has been “a drastic increase” in fatal accidents involving people under the influence of marijuana. “We are well on our way to an adult driving epidemic that will match the DUI epidemic that we had 15 and 20 years ago,” King told his fellow legislators as he argued in support of Senate Bill 117, which proposes a blood test for drivers that can determine marijuana-induced impairment.
When I read that in The Daily Sentinel this week, I thought about the 14,000 innocent lives — up from 10,000 just a few years ago — lost each year to drunk drivers in our nation. And here, King claims that marijuana-induced driving fatalities suddenly rival those. I called his office, but he wasn’t available.
Fortunately, Mesa County chief deputy district attorney Dan Rubinstein graciously offered to talk with me about the bill and its blood test.
“We’ve never had a test to verify if someone was driving under the influence of marijuana at the time, but now we do,” he said.
The new test detects the type of Delta 9 Tetrahydrocannabinol, or THC, that shows up at certain levels only within the first three or four hours after someone has smoked marijuana, the scientifically proven window of impairment. The other types of THC can be detected in the body up to 30 days, long past the window of impairment.
Rubinstein explained that the new blood test actually protects people, because if their test shows Delta 9 THC levels outside the range of impairment, then there’s no question: They were not impaired at the time.
He said that should take care of any concerns of the more than 80,000 medical marijuana patients in Colorado, who do have THC in their bodies long after the impairment window, about being wrongfully accused of driving while high if tested.
But wait a minute. If they didn’t have a test to confirm marijuana impairment until now, how can Sen. King claim with absolute certainty “a drastic increase” in marijuana-involved fatalities?
I was reminded of a case study published last year in the “Journal of Criminal Justice” on methamphetamine’s impact on the criminal justice system in five Western Colorado counties, including Mesa County. The author, criminal justice scholar Michael Gizzi, warned of “moral panic” when it comes to tackling drug problems.
“Whether it is alcohol, marijuana, heroin or cocaine, drugs are viewed as a ‘social scourge’ which threatens to tear apart the social fabric,” he wrote, quoting numerous scholars and their research. “A moral panic can be thought of as a social condition that becomes defined as a threat to community values and whose nature is presented in a stylized and stereotypical fashion by the mass media out of proportion to the alleged threat. Moral panics have five components: heightened concern over particular problems; increased hostility towards (and often demonization of) those engaging in the threatening behavior; a consensus that the threat is real; the concern is out of proportion to the nature of the problem; and volatility in that moral panics erupt suddenly, and just as quickly subside.”
There are about 80,000 medical marijuana users in Colorado now, up from just a few thousand a few years ago. I asked Rubinstein if those people started using marijuana for the first time when they got their medical marijuana cards.
“No,” he said, “but designated drivers, because they aren’t drinking, may be using marijuana instead.” He added that there is a perception among medical marijuana users that because they have a user’s card, it’s OK to drive after using.
“It has never been legal to drive while high,” he said.
All right, but why now? Even a cursory search through archives of the “Journal of Psychopharmacology” shows that Delta 9 THC tests have been in development for decades.
I called on local attorney Steve Laiche, who has represented a long list of clients charged with driving while impaired.
“This bill is a knee-jerk reaction to the medical marijuana issue that no one knows how to regulate,” Laiche said. “If the bill becomes law, let’s see what it looks like six months to a year from now. It’s going to burden the system and still be tough to prove. Samples have to be taken within two hours, then sent to the lab in Denver; lab techs will have to fly over from Denver. It’s going to get interesting.”
I asked both Laiche and Rubinstein about mistakes.
“People make mistakes,” Rubinstein admitted.
“They get a ‘sorry,’ ” Laiche said. “Just ask Dewey,” referring to the man who was freed from prison last week after his DNA sample was re-examined. He had served more than 16 years for a murder he didn’t commit.
Laiche then brought up the 1,700 blood samples for DUI cases processed through the Colorado Department of Public Health and Environment’s lab that are now being re-tested after the lab tech failed to follow standard procedures, making mistakes that resulted in incorrect readings.
Dewey’s release, the 1,700 blood sample retests and King’s bill were all reported just this past week.
I don’t want any impaired drivers on the road. And I applaud any solid, proven method to solve that problem. And maybe SB 117 is the answer. But while I appreciate King’s need to make his mark and pass something — because Lord knows he’s tried time and again, and nearly always it has to do with criminal justice — I think we need to be careful not to legislate with knee-jerk reactions to moral panic.
“Attempts to legislate morality have never worked out,” Laiche concluded before dashing off to court.