Marijuana DUI bill would have offered safeguards for accused

If nothing else can be said about State Sen. Steve King’s bill to set permissible blood levels of marijuana while driving, it certainly has received quite a bit of attention. Iconic websites such as, tokeofthetown.com, puffingtonpost.com and the mysteriously named weedorskin.com have all commented.

What I take from this is that people who smoke marijuana are very interested in the fact that law enforcement wants to establish a benchmark for how much marijuana one can use before we assume it’s unsafe for a person to drive. King’s bill died in last-minute legislative action Tuesday night.

I understand a number of the worries about having a chemical threshold to help determine safe-driving ability. A lot of what is said is equally applicable to alcohol-related driving, where it’s clear that people can react to the same level of alcohol in their body in different ways. Often it has to do with the person’s size and sometimes their health.

For example, a person with a poorly functioning liver is going to react differently and take longer to eliminate alcohol from his system. A diabetic may respond very differently to alcohol due to its chemical structure than a person who has normal insulin reactions to ethanol. Even a person’s physical condition, such as being tired or ill at the time of drinking, can affect abilities.

Then there’s the fact that some people just have less distance to travel to being bad drivers. They’re bad in the best of times, and even a little bit of alcohol can push them into the danger zone.

But there still needs be some guideline for marijuana use, as the state has done with alcohol, creating the presumption a person is intoxicated and shouldn’t be driving.

Although there’s been quite a bit of excitable discussion about King’s bill, it wouldn’t have done everything that some people believe. It sought to create a permissible inference of impairment, at a certain level of concentration of tetrahydrocannabinol, or THC, the intoxicating ingredient in cannabis. But, as with alcohol, it would have been a rebuttable presumption.

Prosecutors would have had to prove beyond a reasonable doubt the accused was impaired. The accused would have been able to introduce evidence to show he or she was not impaired, and a jury would decide.

The law also would have allowed the defense to introduce evidence that the test was flawed or somehow inaccurate. The defense could have additionally introduced evidence, expert and otherwise, “relating to the absence of any or all of the common symptoms or signs of intoxication for the purpose of impeachment of the accuracy of the analysis of the person’s blood, urine, saliva, or breath.”

So behavior would have still been part of the proof equation. The state would have had to prove beyond a reasonable doubt that the person was guilty and officers would have to have reasonable suspicion to stop the person and probable cause to believe the person was under the influence of cannabis to request a test.

These would have been hotly disputed topics before the court, as would the validity of the chemical testing and the behavior of the accused during an officer’s investigation. In fact, I anticipated spirited defense arguments if the law had passed, over the fact that THC is fat soluble, not water soluble like alcohol, and may be present in tissues longer than its intoxicating effect.

In short, under King’s bill, an officer would not have been able to stop a driver willy-nilly, assume he looked like someone who’s probably using drugs and administer some sort of bargain-basement pocket test, then toss that person in the clink, to see him subsequently convicted in court based solely on one factor.

That scenario is much closer to what’s happening in Great Britain this week, after the death of a 14-year-old at the hands of a driver under the influence of cannabis. The British hope to enact a law concerning this type of driving much more rigid than King’s, apparently without any requirement that impaired behavior be demonstrated. It would requre only an elevated level of THC be present.

Here, even if King’s bill had passed, we would still have our constitutional protections in place and a starting point to prevent someone’s excess from becoming someone else’s disaster.

Rick Wagner writes more about politics at his blog, The War on Wrong.


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