Debating the DUI Question

At Slog, Dominic Holden fires back at the opposition from medical marijuana patients to New Approach Washington’s Initiative 502. He writes [emphasis his]:

But it’s dishonest to declare this this measure will subject people to more blood testing or result in a change of policing protocol. If voters pass I-502, officers would be held to the same standards as they are today: They would still require probable cause to stop a car, evidence of driver impairment, and any tests would have to be conducted by a medical professional (typically at a medical clinic or an ER). Those are the standards now, they wouldn’t change, and we hardly ever see those consequences for medical marijuana patients now because they aren’t impaired and cops don’t have probable cause to stop their vehicles. If cops didn’t have probable cause or evidence of impairment, but took action anyway, a defense attorney could move to have the whole thing tossed out—just like today.

It’s true that officers will continue to be held to the same set of rules as they are today, but it’s also true (and I’ve heard this echoed by several defense attorneys) that their motivation to push for a blood draw could certainly change. As of today, it’s very difficult to prove impairment in court. With no limit written into the law, any reputable defense attorney can have that charge thrown out. But with a 5ng/ml limit written into the law, that won’t be so easy. The concern is that this change will empower more police officers to push for blood draws in situations where they never did before. Will it be a significant difference? Maybe, maybe not. But the history of DUI enforcement for alcohol should make anyone wary of the possibilities.

Second, the point he’s trying to make in this paragraph isn’t true at all:

Some medical marijuana patients note that the cut-off is automatic—anyone who exceeds 5n/mg is automatically guilty of DUI. But I-502 actually does something very useful for marijuana users accused of DUI. It separates active metabolites, which indicate inebriation, from THC-COOH, the inactive metabolite that remains in the system for days or weeks. In other words, it tests to see whether people are currently stoned, not simply whether they’ve used marijuana in the past month.

No, it doesn’t test to see whether or not people are stoned. It tests to see whether or not people have more than 5ng/ml of active metabolites in their system. That certainly can indicate that a person is stoned, but sometimes it doesn’t. As I’ve pointed out before, people who use marijuana medicinally (and in particular, those who consume it within food) often have that much active THC in their system at all times. And because their body has that much, they no longer experience the “high” that brings about the impairment in the first place. This is a real concern for medical marijuana patients and I don’t find their concern here to be irrational in any way.

As for the overall initiative, I still find myself incredibly pained by this whole thing. And depending on how it all plays out in the legislature, it’s likely I’ll vote for it. But I’m still very unhappy that the ACLU and New Approach Washington decided to include the DUI provision. I don’t think it was necessary to pass something. It’s not based on sound science. And now it’s led to an organized effort to kill it from within the ranks of the drug law reform community. I worry that they may have misread the politics behind the failure of Prop 19 in California and will end up having people who normally should support legalization turn against it in large numbers – which doomed the Prop 19 campaign as much as any other factor. No one knows how this will play out, but I do find it ironic that the ACLU was willing to shit on the rights of an unpopular segment of the population in order to have a better chance of securing a popular vote.