by Lee, 02/23/2013, 6:55 AM

A few weeks back, the state legislature heard some testimony regarding the new DUI provisions enacted into law with the passage of I-502. These provisions were the most controversial aspect of the initiative among traditional drug law reformers, but throughout the entire campaign, there were very few actual numbers around to convey what the actual risk was.

For instance, how easy is it to be at the 5ng/ml limit? How long do people usually stay there? Is it an accurate measure of impairment? There have been a few studies on this, but far from any kind of consensus.

Also, how many people get marijuana DUI’s already? How many more are likely to get them now that prosecutions could be easier to obtain under I-502?

From the Seattle Times, here was what we learned about the latter set of questions from the testimony:

There has been no jump in “green DUIs,” said the Washington State Patrol’s toxicologist, Dr. Fiona Couper, at the hearing in Olympia Wednesday of the House Public Safety Committee. Seattle DUI attorney Patricia Fulton reported “absolutely no effect” in her defense practice.

This runs contrary to what other DUI attorneys have been saying.

A Seattle attorney whose practice consists solely of medical marijuana cases said more people are coming to him for help fighting charges of driving under the influence of marijuana, even before the new limit took effect.

“I’m seeing one to two a month and have been for a year,” attorney Aaron Pelley said. “Prior to that, I didn’t see really any.”

Pelley believes state patrol officers had been ramping up their enforcement of “green DUIs” in anticipation of the passage of I-502, the law making possession of up to an ounce of marijuana legal. And, now that it’s on the books, he suspects there’s been a “huge spike of number of people being tested.”

What’s the truth here? My guess is that Pelley, who’s been outspoken publicly about the DUI provisions, is generating more business for himself as a result, not that there are more people getting nailed.

So there isn’t much evidence the worst case scenarios are taking root, there’s still a concern with the basic effects of the new law:

Blood testing is not new and not done casually. It’s done at a medical center, and takes money and time. Couper said 1,000 to 1,100 drivers were tested last year statewide, with the median result slightly below 5 nanograms. About one-third also tested positive for alcohol.

If those numbers stay constant in 2013, it would mean that about 500 people tested for marijuana will have a much harder time defending themselves in court against a DUI charge than before I-502 became law. It’s possible that many of these are egregious cases where the DUI is deserved. But it’s also possible that many of them involve innocent medical marijuana patients being harassed. At this point, without more specific numbers, it’s not clear how much of each case we’re dealing with. And assurances from the police that they’ll only go after impaired folks requires a lot of skepticism given the history of DUI enforcement. What’s promising is that this issue has been generating a lot of media attention and that we’ll hopefully be able to highlight any cases where people get trapped in a truly unfair prosecution.

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Going back to the first set of questions above, how much is 5ng/ml, and what level of impairment does that really imply? Kiro7 recently aired an investigative report where they took 3 volunteers, had them smoke a popular and potent strain of marijuana, and let them drive around on a closed course. The video is here:

There are a couple of takeaways from this, but the main one is that even at 4, 5, and 7 times the new 5ng/ml legal limit, these volunteers drove fine. This was after consuming .3g. Of course, once they started smoking more than what people normally smoke in a sitting, their abilities tailed off.

Another key point is that even after these volunteers smoked themselves silly on nearly a gram of high quality marijuana and were driving like complete idiots, they all knew full well they were too stoned to drive (even the medical marijuana patient who was a heavy user). This is one of the main differences between alcohol and pot. People who drink too much alcohol become uninhibited along with their impairment, while marijuana users often become timid and cautious (although it was interesting to see that the medical marijuana user was a bit of an exception once they let her get behind the wheel). This is why alcohol-related reckless driving deaths are a frequent occurrence while it’s difficult to find too many instances of them with stoned drivers, even though impairment can occur from the over-consumption of each drug. People who are too stoned to drive often become reluctant to do it, and even if they do, they tend to drive really slow. People who are too drunk to drive often disregard the risks and drive very aggressively.

I’ve written in the past (sadly, the old Reload site is retired) about my own history with marijuana and driving, but didn’t discuss it much during the DUI debates of the I-502 campaign. My main reluctance has always been that it’s a difficult subject that generates mostly gut-level responses that don’t get us anywhere. This exercise provides enough data and visual evidence to at least begin discussing it rationally.

To recap, in my mid-20s for about 2 years, I smoked a small amount of pot at the beginning of nearly every drive I took (except for morning commutes, of course). There were two reasons for this. One, I was doing the hellish 520 commute from Seattle to my job at Microsoft and basically inched home at 2mph every day. And two, I’m a naturally fast driver and I found that pot would make me calmer and more relaxed as I drove. By that point, I’d already gotten somewhere around 7 or 8 speeding tickets in my life and was sick and tired of getting pulled over. Taking a hit off of a one-hitter made it far easier for me to obey the speed limits. In those two years, I was never pulled over for speeding – or for anything else – while stoned.

A one-hitter is a small smoking pipe, often made to look like a cigarette. Compared to what the volunteers in the Kiro7 experiment initially consumed, it probably only held about 1/3 of that, maybe .1g. I’d been wondering if the small amounts I was consuming in those days would even put me over the 5ng/ml limit. Looking at the data shown in the video, it probably was, but maybe not by a lot and probably for not very long.

From a safety standpoint, how safe this was is a matter of perspective and an interesting paradox. I always recognized two drawbacks to this. One, my navigational skills declined somewhat, so in the rare case where I was going somewhere new and was concerned I might get lost, I wouldn’t smoke. Two, my ability to react quickly and intelligently in the face of an emergency was also lessened. Thankfully, this never happened.

But to the outside observer, I was clearly a safer driver when I was stoned. Instead of being the guy weaving through traffic at 80 on I-5, I became the guy driving 55-60 in the right lane listening to some Percy Hill with a big fucking smile on my face. In my normal sober driving mode, I know I can drive safely at those high speeds, but to other drivers, I probably scare the shit out of some of them. And I draw the attention of the police, who like to give me very expensive speeding tickets.

After two years of this, I finally said “fuck it”, sold my car, and started taking public transportation for a little over 7 years. In 2010, after moving out to the suburbs, I once again have a car, but no longer smoke pot, so I have a radar detector in my Prius as I once again weave through rush hour traffic on I-5.

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The rationale behind the inclusion of DUI language in I-502 was always clear, even if the result in Colorado showed that it probably wasn’t necessary to win at the ballot box. But the political implications of having drug law reformers concede too much on this point continue to worry me. Other states are considering and even implementing proposals far worse than what we ended up with here. And when there’s an unchallenged notion that stoned driving and drunk driving are the same, it’s difficult to avoid any of these outcomes.

The point of my story wasn’t to argue that stoned driving is good or bad, but to recognize that the issue is a lot more complicated than many people initially assume. From a regulatory standpoint, doing things that have worked or been accepted for drunk driving may not be the correct approach at all for stoned driving.

7 Responses to “DUI Updates”

1. Ten Years After spews:

Al this is going to take a long time to work out, but I’m confident it will be settled in a couple of years. The big hurdle has been cleared with the passage of 502.

2. Lee spews:

@1
I hope so. I’m more confident than I was a few months ago.

3. distantreplay spews:

I think there is risk whenever we argue from the general to the specific that everything becomes “more complicated”.
After all, everything is.

The blood alcohol standards for DUI can become untethered from real life when applied to individual circumstances. And maybe they aren’t the best public policy after all. But I tend to believe they work better than either hunches by arresting officers, or the purely argumentative standards that arise from observations of street sobriety tests. More than a few criminal defense attorneys make a handsome living destroying such obsvervations in cross.

Lee, I absolutely agree with you that, in general, MJ users pose less of a risk behind the wheel than drinkers do for all the reasons you mention. And I sincerely hope that as 502 continues to be implemented that is borne out in general.

But I believe that where the law sets out to limit social harm arising from individual behavior we are often left with nothing better than the blunt tools of the general to apply to the individual.

4. Ten Years After spews:

Yes, users of marijuana may be less dangerous than alcohol abusers, but I don’t condone anyone smoking and driving. “Stay home, stay stoned.”

Or drinking and driving, for that matter.

5. Cpl Nobby spews:

Not an easy subject. Some good points on smokers.

I had a pipe nearly every day for over twenty years, before driving 17 miles to work in Kitsap Co. Much of it on a gofaster type motorcycle. No accidents or tickets, though two to three times a week someone would violate my right of way.

But that’s just my experience.

6. Lee spews:

@3
Good thoughts. My concern is that the “blunt tool” of per se limits that’s been accepted for drunk driving isn’t as appropriate for stoned driving. Both because stoned driving is nowhere near the public health concern, but also because the science behind any limit just isn’t there.

I like that we can now have some smarter and more serious discussions about this topic though. It’s certainly a good measure of progress.

7. Ned spews:

I was a regular user and driver for over 20 years. I know the subject well. Some things my experience says are true:

Habitual users can drive safely with fairly high blood levels. That drops off quite a bit for occasional users.

There is a spike in potential impairment shortly after ingestion, as the effects “come on” to the user. This is true even for heavy users. That period is fairly short, say 15-20 minutes. Once the users adjusts to feeling “high”, they regain the ability to operate a vehicle in a manner that is as safe as an “average” driver.

Overall driving skills apply too. Skilled good drivers can manage the effects better than less skilled ones and personality type is a factor too. Mellow even tempered people will do better than anxious or insecure nervous types.

While stoned driving is a concern, it isn’t the imminent extreme danger that drunk driving is. That’s why despite the illegality, stoned driving has never developed into a problem. Users have been out there, driving, for many years.