News The problem with America’s marijuana DUI laws: science The …

‘You have people that are just baked’

Gagan Singh rolled a “fat blunt” before he hit the slopes at Lake Tahoe on a sunny Wednesday morning.

By the end of the day, he needed a refill, so he drove to Reno and stopped at one of the local medical marijuana dispensaries. With his Patagonia jacket and bleached-blond man-bun, Singh was eager to head to his hotel and smoke.

The only reason he wouldn’t be smoking while driving to the hotel was because he believes Nevada cops are stricter than the ones in the Bay Area.

“Yeah, I roll my blunts while I’m driving. I smoke while I’m driving,” said Singh, 26, who owns a logistics business and a “party bus” in Oakland, Calif. “I don’t get high after two blunts. I just get tired and lazy.”

With the passage of recreational marijuana in November, Nevada is grappling with questions of how to handle the issue of driving while stoned. And while driving high is still illegal, determining what exactly constitutes “high” is not as easy as it sounds.

Just how much pot is an ounce? Watch our explainer:

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Since Nevada legalized recreational marijuana, anyone 21 and over can possess up to 1 ounce in-state. How many people actually could look at an ounce and identify it, though? We’re here to help educate you.
Jenny Kane/RGJ

Among states with legal recreational marijuana, Nevada has the strictest limit on how much of the chemical THC can be in the bloodstream — the weed equivalent of blood-alcohol content — before the driver is considered impaired. Nevada’s limit is even lower than the federal standard for Department of Transportation employees.

But catching drugged drivers has become more complicated since recreational marijuana became legal in January across the state.

No real-time, accurate test exists.  Officers have no accurate Breathalyzer test; blood, urine and saliva tests exist but are imperfect.

On top of that, no scientific evidence backs up that a specific amount of marijuana in a person’s system means impairment. That means that limits for marijuana similar to those for alcohol use can be problematic.

“You have people that are just baked, they have that Spicoli persona and yet they ace the driving test. You have others who are totally sober and they flunk that blood test,” said Chris Halsor, a former Colorado prosecutor currently serving as Nevada’s temporary traffic safety resource prosecutor.

Nevada law says that anyone with 2 nanograms of marijuana in their system while driving is impaired.

Critics of the limit point out that it’s so low that people who have smoked marijuana in the distant past but are not impaired could be convicted of DUI under the current law.

However, advocates of the limit point out that driving under the influence cases involving marijuana are already difficult to prove and a limit is necessary.

Despite the inconsistencies, states must adapt, Halsor said. It’s an issue every state that legalizes marijuana faces, finding varying solutions.

“You have to go into every case being able to prove impairment without toxicology,” Halsor said.

A legal puzzle

The question of marijuana DUIs has been at the forefront of bipartisan discussions among lawmakers since Nevadans voted in November to legalize recreational marijuana. Anyone 21 and over can possess up to 1 ounce of recreational marijuana, even though it remains a federal offense.

Medical marijuana has been legal in Nevada since 2000, and recreational marijuana officially became legal as of Jan. 1, though it is still a misdemeanor to drive under the influence of marijuana and can be a felony depending on circumstances.

Just as Nevada has a .08 blood alcohol limit, the state also has a 2 nanograms per milliliter of blood limit for marijuana. Colorado and Washington’s limit is 5 nanograms.

Most states and Washington, D.C., that have legalized recreational marijuana — California, Oregon, Massachusetts, Maine, and Alaska — have no set limit. States without set limits also establish that impaired driving is illegal and can be proven by a defendant’s behavior and statements at the time of arrest.

“States are trying to figure out what is a fair nanogram limit – what should they use for guidance, and should we have a nanogram limit? Neither is good, right? I don’t think it’s appropriate to institute a rule that doesn’t work. I don’t understand the point of having a limit if that doesn’t tell you what you need to know,” said Dr. Ryan Vandrey, associate professor of behavioral pharmacology research at Johns Hopkins University Medical School in Baltimore. “If you are going to punish people for not being under the influence of a drug that you just legalized, that’s not fair. You can’t take corrective action.”

While it would seem logical to model drugged driving laws after existing drunken driving laws, marijuana is a tricky substance.

“Alcohol is the exception. Alcohol is the only drug that we can immediately determine whether someone is acutely impaired on the roadside,” said Vandrey. “There are lots of drugs that we don’t have reliable tests for – cannabis is the normative.”

Vandrey shakes his head at the states, including Nevada, that still have a set “limit” written into their laws because, if those limits cannot prove impairment, he said, what’s the point?

Based on his research, people might have 50 to 100 nanograms of marijuana in their system immediately after smoking marijuana. Ten minutes later, though, only 2 to 10 nanograms might be present, and it really depends on the person, he said.

“”We’re an island in a sea of green.””

Sgt. Dan Thom, Idaho Falls County Sheriff’s Office

Top of the line tests – usually via blood — can detect as low as a half-nanogram, but most equipment can only detect 1 to 2 nanograms, which is even still a pretty low threshold, he said.

Of all the states that have legalized recreational marijuana, Nevada has the lowest set limit, lower than some federal guidelines for U.S. Department of Transportation employees.

While people who work in industries regulated by the U.S. Department of Transportation, such as truck drivers, train engineers and subway operators, are prohibited from using medical or recreational marijuana during employment, they are simultaneously told that they cannot have any more than 50 nanograms of marijuana metabolites in their blood upon hire and 15 nanograms when on the job, according to the department’s rules and regulations.

Granted, metabolites, or the compounds that are broken down from marijuana, are usually higher in volume that marijuana itself when measured by a blood test, the measurement for marijuana is not usually far off.

Even the states that have not legalized marijuana have to deal with this issue of “the limit” since many, at least out West, border a state that has legalized pot.

Arizona, which has legalized medical marijuana, shares a zero-tolerance law with Utah, where marijuana is illegal in all forms. This means that any presence of a drug in the driver’s body is grounds for a DUI charge, regardless of whether the driver is actually impaired.

Marijuana also is still illegal in any form in Idaho, too, but like California and Oregon the state has no set limit.

“We’re an island in a sea of green,” said Sgt. Dan Thom, a certified drug recognition expert with the Idaho Falls County Sheriff’s Office, noting that the state is surrounded by others that have legalized weed in some way.

Just because pot still is prohibited in Idaho doesn’t mean that law enforcement officers don’t have to keep their eyes out for stoned drivers. Drivers can be coming over the border from Jackpot, Nev., or they are tapped into Idaho’s own black market.

He recommended that Nevada get rid of its set limit because any limit makes cases harder to prosecute, he said.

If officers focus on identifying someone who is high using their own observations, their jobs will be much more efficient, Thom said. Little details will be case-closers, not the blood tests, he said. Those details include  whether someone has a “butterfly flutter” to their eyelids, meaning they are almost twitching, or their eyes are bloodshot.

“Attorneys will come up with all of these excuses, and they make a lot of money on DUIs,” he said. “Prosecutors hate it when I say this, but it’s a game, you just gotta learn the rules.”

‘Everyone just wants to get home’

Law enforcement officials who want to keep the state’s set limit say that it is necessary if marijuana DUI cases are going to be successfully prosecuted.

“You have to set a standard somewhere,” said Washoe County District Attorney Chris Hicks.

Hicks was against legalization from the beginning and worries because drunken driving already is the most commonly prosecuted charge in Washoe County.

While most drunken-driving cases never reach his desk because they’re misdemeanors and handled at a lower level, Hicks sees the worst cases. Nevada already has a history of tragic driving under the influence cases in which one of the people involved tested positive for marijuana.

In 2004, Anna Marie Jackson was convicted of having marijuana in her system when she pulled in front of a motorcycle officer, causing the death of 55-year-old Officer Mike Scofield. A scholarship fund was set up in the name of Scofield, a husband, father of four and a 25-year veteran of the Reno Police Department.

Last year, a jury found 25-year-old Nicole Cote guilty of two counts of a DUI causing substantial bodily harm and two counts of reckless driving causing substantial bodily harm.

Cote was traveling at more than 60 mph when she rammed into a vehicle with two young men, both of whom were seriously injured. One of the victims, 19-year-old Blaze Brucato, went into a coma and spent 19 months relearning to walk and talk.

Blaze Brucato prior to a car crash in 2014.
(Photo: Courtesy of Thomas Cohan)

At the trial, his father testified that Brucato, who was serving in the Nevada National Guard and wanted to become an Air Force pilot, still must use a wheelchair and is unable to speak coherently.

Cote, who called 911 and said she was worried about her new car, had a .066 blood alcohol level and had 6 nanograms of marijuana in her system.

In March, Mario Cortez was sentenced to 40 years in prison after he killed a couple while driving with a blood alcohol content of .202 and five times the legal limit of marijuana in his blood.

The crash killed Mario and Erlinda Guansing, who were in their 70s. The couple planned to retire to spend time with family in Canada and in the Philippines. They moved to the United States 12 years ago after they retired from their jobs in electrical engineering and banking. They were working to support relatives pursuing higher education and to send money back to their church in the Philippines.

“Every one of these victims has a heavy story. I wish I could implant them in people’s minds,” Hicks said. “DUIs transcend all demographics. It can be a grandma, a college student, or a five-time felon.”

It’s hard to compare the data for marijuana DUIs to DUIs caused by alcohol.

That’s because agencies have not been separating alcohol DUIs from other DUIs, and officers have not been consistently checking for controlled substances other than alcohol unless the accident is fatal. It also is not uncommon for DUI cases that involve marijuana to also involve alcohol, which leads some pot advocates to say that alcohol is far greater a concern when it comes to road safety.

Hicks, however, uses the common rhetoric of “Look what’s happening in Colorado…”

Some of the numbers are indeed unsettling.

The number of marijuana DUI fatalities caused by a driver under the influence of only cannabis has nearly doubled, from 39 in 2013 to 68 in 2015, according to the Colorado Department of Transportation. In Washington, the percentage of drivers involved in fatal crashes who recently used marijuana more than doubled from eight percent to 17 percent between 2013 and 2014, according to the AAA Foundation for Traffic Safety, a nonprofit dedicated to traffic safety.

The problem is: Colorado has only been keeping tabs on marijuana-related DUI cases since 2013, so there’s not enough data to conclusively determine a trend, according to Nevada’s traffic safety resource prosecutor, Halsor, who is still based out of Colorado. He warns that those statistics come with a grain of salt.

“If we see an increase in DUI detection, is it because we have more impaired drivers or is it because we have better trained officers?” said Halsor, who is training law enforcement and prosecutors in 15 rural Nevada counties to identify stoned drivers and build stronger cases against them.

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Chris Halsor, temporarily the traffic safety resource prosecutor for Nevada, is teaching Nevada’s rural prosecutors and law enforcement about how to handle DUI cases that involve marijuana.
Jenny Kane/RGJ

Moving forward, it will be difficult to tell whether Nevada’s traffic has been affected by legalization because, like most states, it does not have a collective database of marijuana DUI arrests.

“A DUI is a DUI,” according to Amy Davey, division administrator for Nevada’s Office of Traffic Safety, explaining that all DUIs are the same when you look at crime data.

On top of that, officers will often stop if they get a positive result for alcohol because that’s all that is needed to prove a DUI, Davey said.

“I don’t think that there is any state right now that would say, ‘I got this.'”

She is neutral about what should be done with Nevada’s marijuana DUI law until researchers find an effective tool to measure impairment. She just hopes that — between education efforts and law enforcement trainings — the state can keep its roads safe.

“It’s hard because everyone uses Nevada roads. At the end of the night, everyone just wants to get home,” she said.

(Photo: Tyler Hersko/RGJ)

An imperfect science

Tim Packham, 20, of Reno, smokes marijuana to help with nausea issues. He takes Uber when he feels like he might be impaired. At the same time, there are times when he drives because he knows he’s not high but he also knows that a blood test could pick up on the cannabis that still is in his system days later.

“We don’t have a way to test how high you are. We need to spend more money, and do more research,” he said.

Many drug policy experts, lawmakers, attorneys, consumers and law enforcement agree: We have to figure out how to scientifically prove impairment, for everyone’s sake.

Vandrey has been trying to figure out the million dollar answer for years.

“If there was a simple solution, you wouldn’t be calling me,” Vandrey said.

Researching marijuana is tough, too, since weed is still considered a Schedule I drug by the U.S. Drug Enforcement Agency, but most of the research Vandrey and his team conduct is funded by federal grants. The goal is to develop a reliable test that indicates whether someone’s abilities are affected by marijuana in real time.

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Vandrey and his research team are testing this out in a laboratory where participants who have smoked marijuana before, but don’t on a regular basis anymore, try different products and the team tests how they are affected at different time intervals. They test them after a few minutes, hours, days and sometimes weeks.

“Ten years ago, we were just seeing people smoking it. Now, people are eating it, rubbing it on their skin, using vaporizers, taking suppositories… we can’t keep up,” he said.

Marijuana, he explained, is not like alcohol in terms of how it interacts with our bodies. While alcohol goes straight to the bloodstream, marijuana is fat soluble, which means different compounds can linger in the body for long periods of time. How long they hang out there depends on a person’s body composition and also how often they consume marijuana products.

Once marijuana hits a person’s system, marijuana breaks down into cannabinoids, or compounds with different effects.

“The marijuana plant has hundreds of different cannabinoids, but THC is the psychoactive compound,” said Dr. Katharine Neill, a drug policy expert of the Baker Institute.

THC is known as the compound that makes people high. Other compounds don’t have the same psychoactive effects. These compounds act differently once consumed.

(Photo: Mike Higdon/RGJ)

Hydroxy THC, for instance, indicates impairment but the levels in your system drop dramatically within 10 minutes, Neill said. That’s a huge issue since law enforcement officials say the time between an arrest and a blood test is usually one to two hours.

Carboxy THC, which does not indicate impairment, takes much longer to dissipate, especially if consumed frequently. That means certain tests could find Carboxy THC after a longer period and be held against a driver, even though that compound does not impair a person.

Some lawmakers are trying to address this issue, but during Nevada’s current legislative session, no one has suggested eliminating the nanogram limit altogether and the deadline has passed for new bills.

Nevada Assemblyman Steve Yeager, D-Las Vegas, introduced a bill that would eliminate urine tests altogether in-state because urine tests detect some compounds that are not tied to impairment. The bill is based on the report of two medical students, Graham Lambert and Charles Cullison, who are studying medical law in Henderson.

He is proposing that law enforcement only use blood tests that test for the THC compound and THC metabolite that can be tied to impairment. Costs for law enforcement could go up, granted, since blood tests run about $275 and take about 100 days to process, according to Lambert and Cullison.

While Vandrey acknowledges that the two medical students are on the right track, the biomarkers their tests would use still do not indicate impairment in real time, he said. Truly, there is nothing out there that solves the issue yet.

“I don’t think we’re even close. I haven’t solved it yet, but there’s a lot of smart people working on it. Once it happens, it will happen,” he said.

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