The Washington State Democrats have officially endorsed I-502, the initiative from New Approach Washington (NAW) that aims to legalize possession of up to an ounce of marijuana and establish regulated markets for its production and sale. A number of internet commenters are treating this as a new milestone, but it’s not the first time the state’s Democrats have endorsed a legalization initiative. The Washington State Democrats also endorsed Sensible Washington’s I-1068 in 2010.
But one thing is missing from both Just Say Now’s post and this editorial in the Spokesman-Review, and it remains the most divisive aspect of the initiative: the proposal of a 5ng/ml per se marijuana threshold for all drivers.
To most people, the idea of creating a system for marijuana similar to how alcohol is dealt with is a no-brainer. And the backers of New Approach Washington make no bones about the fact that finding an initiative that can pass a statewide vote is their priority. But the science behind this limit is simply not there, and it could have serious repercussions not only for medical marijuana users, but for anyone who uses the roads in Washington.
As I wrote last time I discussed this initiative, a ng/ml measurement of the active marijuana THC compound is not an indicator of impairment the way that a blood-alcohol measurement is. Medical marijuana patients often have very high ng/ml measurements at all times, even if they haven’t used it in over a day. And in some cases, those individuals no longer experience the psychoactive effects from the drug that creates the impairment in the first place.
Recently in Colorado, attempts to enact a limit similar to the one NAW proposes have stalled several times. Last week, a workgroup that was put together to establish a 5ng/ml limit ultimately decided not to move forward, citing these problems. Compounding the issue is the fact that – despite what many people seem to take for granted about driving while stoned – there’s very little evidence showing any correlation between testing positive for THC and road fatalities. In fact, the link above points out that the numbers of road fatalities have plummeted by 20 percent in Colorado since medical marijuana became legal.
And another study has shown that there’s no increased incidence of accidents for even up to double the proposed limit (10ng/ml). (see update below)
The reasons for that are likely a combination of the inaccuracy of the ng/ml metric as a valid measurement of impairment, as well as the somewhat counter-intuitive nature of driving while stoned. While driving under the influence of marijuana is certainly not a smart idea, it tends to have some of the opposite effects that alcohol does. The common generality is that a drunk driver will drive through a red light while a stoned driver will stop at a green light. Alcohol impairment tends to go alongside reckless and aggressive driving while marijuana impairment tends to go alongside overly-cautious and passive driving. Despite that, the main reason not to drive stoned is that you won’t be able to act quickly in an emergency situation. Driving requires your full attention, and if there were a way to accurately measure impairment, I’d be perfectly fine with sanctions for those who aren’t capable of operating their car safely. But there just isn’t right now.
Up until now, charges for driving under the influence of marijuana are relatively rare. Without a per se limit, most defense attorneys know how to defeat them, and it’s often not worth an officer’s time to take a driver to get a blood draw that won’t hold up in court. In order to obtain a conviction, prosecutors have to prove impairment in other ways, which is difficult to do. However, if this limit is approved by the voters, that burden of proof is gone. What would happen then isn’t entirely clear, but it’s not hard to imagine that officers will be more likely to demand a blood draw for any situation in which they can conjure up probable cause (which is not very hard). In fact, one attorney I spoke with last month stated that under this new limit, if a medical marijuana patient is doing nothing wrong, but is struck by a reckless driver (who then dies), he or she could be given a blood draw and then charged with negligent homicide.
The folks behind NAW think that none of this will matter in the election, and they very well could be right. Medical marijuana patients make up only about 1-2% of the overall population. The vast majority of people will see this provision as a plus (as the state Democrats did), and perhaps for a small percentage of folks, it will be the difference between a yes and a no vote. But what worries me the most isn’t even the additional risk for medical marijuana patients. It’s the fact that we already have a very difficult time keeping drunk drivers off the road. The prospect of expanding the scope of that enforcement to include a subset of the population that is statistically far less likely than drunk drivers to kill someone is bad prioritization and will inevitably lead to even more repetitive drunk drivers falling through the cracks of the system.
I’ve had some good discussions with supporters of the NAW initiative, and the difference really comes down to how one sees this whole process playing out. While it would be nice to finally see a statewide legalization initiative finally pass, it’s also possible that if we pass it, the federal courts could strike down some parts of the law, but still leave us with the DUI limit and only a one-ounce decriminalization (which a number of states already have). There are some concessions I’m very willing to make in the greater effort of ending marijuana prohibition, but this attempt to appease the anti-science beast is still a bridge too far.
UPDATE: The study linked above (which I’ve struck) was using a different metric for measuring ng/ml than what the I-502 initiative proposes. The study only claims that there’s no difference up to the 5ng/ml limit. The complete study can be read here.