Marijuana & Driving - TMCEC€¦ · Medicinal use of marijuana including the limited use of low-THC / high CBD Follow-up legislation in recreational states and D.C. Recreational legalization

www.JusticeSpeakersInstitute.com

Texas Municipal Courts Education Center

Judge Mary A. Celeste (Ret.) March 20, 2016

The following presentation may not be copied in whole or in part without the written permission of the author

Marijuana & Driving


Overview • MJ Facts

• How MJ Affects Driving

• Drugged Driving

• MJ & Driving

• MJ Driving Laws

• DREs

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The THC potency 1970’s less than 1% Today levels have climbed to 8.8%.

Not Your Mother’s Marijuana

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1% to 8.8%

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“THC levels between

40%-90%”

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Current Use

UP 74.2% since 2006

SAMHSA

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Washington Survey 2015

• 926 Drivers Surveyed 5 locations within 6 Washington counties

• Within two hours of using, how do you think it affected your driving?

• 87 % said the MJ either made no difference in their driving or improved their driving.

• Results of breath, oral fluid, and blood samples

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Minnesota Guam Puerto Rico Louisiana Washington D.C.

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Report Predicts 18 States Will Legalize Pot by 2020

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Pending & New MJ Laws More than 500 bills addressing marijuana have been

introduced in the 2015 legislative sessions

Medicinal use of marijuana including the limited use of low-THC / high CBD

Follow-up legislation in recreational states and D.C.

Recreational legalization efforts

Legislation to decriminalize or lower penalties (includes moving marijuana from states’ controlled substance schedule I)

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How Does MJ Affect Driving?

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Behavioral Domains Relevant to Driving

1. Alertness and arousal

2. Attention and processing speed

3. Reaction time and psychomotor functions

4. Sensory-perceptual functions

5. Executive functions

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THC debilitating short-term cognitive effects

• Slows reaction times and the learning process; • Hampers concentration and short-term memory;

• Distorts perceptions of time and space, including distance;

• Diminishes the eye-hand-foot coordination necessary for

driving.

• Together or separately, those effects could predictably deteriorate a person’s ability to drive safely or to engage in other safety-related behaviors.

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Meta Analysis 60 MJ Studies

Laboratory

Driving Simulator

On-Road Experiments

Behavioral and cognitive skills related to driving performance were impaired with increasing THC blood levels

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Pending NHTSA/NIDA Study

• NHTSA and the NIDA in the final months of a three-year, half-million-dollar cooperative study to determine the impact of inhaled marijuana on driving performance

• The study is being performed using what NHTSA calls "the world's most advanced driving simulator," the University of Iowa's NADS.

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NADS National Advanced Driving Simulator

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Study Chronic Use & Driving

Found that among chronic cannabis users, performance on driving related tasks was

affected as much as three weeks after drug use was stopped.

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Does MJ Cause Crashes & Fatalities

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NHTSA Roadside Survey of Alcohol and Drug Use by Drivers

• The number of weekend nighttime drivers with evidence of drugs in their system climbed from 16.3 percent in 2007 to 20 percent in 2014.

• The number of drivers with marijuana in their system grew by nearly 50 percent.

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2015 NHTSA Crash Risk Study

Car crashes in Virginia Beach, Va., during a 20-month period ending in 2012

Researchers randomly sampled 3,000 crash-involved drivers

Found no evidence suggesting those with marijuana in their system were more prone to crashes.

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2015 NHTSA Crash Risk Study Too Many Variables

• The significant increased risk of crash involvement associated with THC is difficult to pinpoint because of too many demographic variables..., gender, age…

• For example, if the THC-positive drivers were predominantly young males it was difficult to distinguish risk

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More drivers use marijuana but link to crashes is murky

“Some studies have found that using the drug could more than double crash risk, while others have failed to find a link between marijuana use and crashes.”

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AMERICAN CRIMINAL LAW REVIEW 2015

“there is no consensus that cannabis use

will ineluctably cause the average marijuana user to suffer an automobile accident.”

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Study: MJ Fatalities Tripled

Center for Injury Epidemiology and Prevention Columbia University

Fatal car crashes where the driver tested positive for the presence of marijuana use have tripled in 10 years

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Study MJ Fatalities Tripled

“If this trend continues, in five or six years non-alcohol drugs will overtake alcohol to become the most common substance involved in deaths related to impaired driving.”

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2015 Governors Highway Safety Association

• According to a report the number of dead drivers who tested positive for drugs jumped

• Nearly 40% in 2013 from 29 % 2005.

• They attributed the big jump to an increase in prescription drug use and to the legalization of marijuana.

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Colorado Still Not Sure Whether Legal MJ Made Roads Less Safe

• Denver Post 12/29/15

• The Colorado State Patrol started measuring marijuana-related traffic citations in 2014, said Sgt. Rob Madden, a spokesman. That year will serve as the baseline for years to come.

• "Statistically speaking, you need more than two years of data, and we don't even have two years yet," Madden said.

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2015 Colorado Rocky Mountain HIDTA

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Colorado State Patrol Statistics 2015.

• CSP said in 2014, 12.2 percent of DUI and DUID citations were related to marijuana.

• In 2015, that percentage rose to 14.6 percent.

• However, the total number of DUI and DUID citations related to marijuana decreased by 1.3 percent between 2014 and 2015.

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2015 Washington Traffic Safety Commission

• Half of the drivers testing positive for an "active" level of the drug, were also under the influence of Alcohol.

• Drivers in fatalities testing positive for Marijuana increased 48% from '13-'14.

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2015 Washington Traffic Safety Commission

• 60% of drivers in fatal crashes were tested for drugs. Of those, 20% tested positive for Marijuana

• Largest increase in Marijuana positive readings involved men ages 21-25.

• That group went from 6%-19% in '14.

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Washington Fatalities Pot Confounded

• Half the drivers with active THC in their blood also were under the influence of alcohol, and the majority of those were legally intoxicated.

• Data also doesn’t account for prescription drugs in the marijuana-positive drivers in fatal crashes.

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Drugged Driving

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1995-2013 Fatalities

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Fatalities 1995-2013

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Drugged Driving Laws

• Most drugged driving laws are contained within the alcohol driving statutes

• 16 states have separate DUI and DUID statutes

• Washington carved out a separate law that addresses driving under the influence of marijuana solely.

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• Observations & Testing

• Zero Tolerance Laws

• Per Se Laws

Marijuana Driving Laws

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• Per se laws prohibit drivers from operating a motor vehicle if they have greater than a set level of a drug or drug metabolite present in their system.

• Typically not necessary to prove driver impairment to convict.

Difference Between Per Se and Zero Tolerance DUID Laws

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• Zero Tolerance laws, in their strictest form, forbid drivers from operating a motor vehicle if they have any detectable level of an illicit drug/controlled substance or drug metabolite present in their bodily fluids.

• 20 States

Difference Between Per Se and Zero Tolerance Laws

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• Colorado , Montana & Washington 5

• Ohio & Nevada 2

• Pennsylvania 1

• Alaska & Oregon didn't include MJ DUID

• 2015 Illinois shot down 15

• 2015 Maine shot down 5

• 2014 California Bill shot down 2

THC Per Se Laws

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Understanding Marijuana Toxicology

THC a/k/a delta-9-tetrahydrocannabinol is the main psychoactive substance found in marijuana

11-Hydroxy-THC is the main psychoactive metabolite of THC formed in the body after marijuana consumption

11-nor-9-Carboxy-THC is the main secondary metabolite of THC which is formed in the body after marijuana is consumed. It is NOT active.

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US Department of Transportation Report Metabolites

“while a positive test for drug metabolites is ‘solid proof’ of drug use within the last few days…

It cannot be used by itself to prove behavioral impairment during a focal event."

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Zero Tolerance THC

• 9 states have zero tolerance for THC or a metabolite.

• 3 states have zero tolerance for THC but no restriction on metabolites.

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Non-Active Metabolite

• People v. Feezel, 486 Mich. 184 (2010): Held that 11-carboxy-THC does NOT constitute a derivative of marijuana and thus, is not a controlled substance

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Metabolites & Zero Tolerance Laws

• Defendant charged with operating a motor vehicle with a schedule 1 controlled substance in his body. Michigan Supreme Court held:

– MMMA's prohibition against driving while “under the influence” of marijuana contemplates something more than having any amount of marijuana in one's system and requires some effect on the person.

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Arizona Supreme Court: No DUI for Marijuana Metabolite

The presence of a non-psychoactive marijuana compound does not constitute impairment under the law.

• Montgomery v. Harris (Shilgevorkyan)

232 Ariz. 76, 301 P.3d 580 (2013) upheld 4/22/14

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Issues With Per Se Laws

• Lack of Uniformity

• NHTSA Report

• NIDA Report

• National District Attorneys' Association

• Lack of Scientific Consensus

• Different Response to Same Dose

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THC Levels & Impairment

• It is difficult to establish a relationship between a person's THC blood or plasma concentration and performance impairing effects.

• Concentrations of parent drug and metabolite are very dependent on pattern of use as well as dose

• “It is inadvisable to try and predict effects based on blood THC concentrations alone”

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THC Levels & Impairment: (National Institute on Drug Abuse)

• In marijuana cases there is no absolute standard relationship between blood levels of marijuana and (or metabolites) and impairment.

• Blood concentrations rise and fall as marijuana is distributed and metabolized, however the drug’s behavioral effects are often prolonged.

• Tolerance to a drug also plays a role in the level of impairment observed.

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Drug Concentration in Blood Not Automatic Impairment

With the exception of ethanol, there is so far no widely accepted correlation between the drug concentration in blood and a corresponding level of driving impairment among the scientific community.

National District Attorneys' Association

2004

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THC Levels & Impairment

• Different response to same dose depending on genetics and drug metabolism.

• Age, sex, weight, disease state and drug-drug and drug-alcohol interactions also can cause differences in how an individual behaves under the influence of a drug.

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Effects on Driving Skills • Varies from person to person based on a host of individual

factors:

• absorption, distribution, metabolism, and excretion rate of THC; the quantity of past marijuana usage; THC tolerance; the time when a person last inhaled or ingested marijuana; the time since a person last ate, as well as the fat content of his meal; and individual smoking techniques.

• “There also is little that can be done today to distill and identify the particular contribution each factor makes to impairment.”

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THC Tolerance

• A 2014 study led by researchers at Washington State University speculated that:

• Cannabinoids affect men and women differently, particularly in regard to drug tolerance and THC sensitivity.

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Why Is It So Hard To Test Whether Drivers Are Stoned? NPR 2/9/16

• "Everyone is looking for one number," she says. "And it's almost impossible to come up with one number. Occasional users can be very impaired at one microgram per liter, and chronic, frequent smokers will be over one microgram per liter maybe for weeks.“

• Marilyn Huestis, Chief Toxicologist NIH/NIDA

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Why Is It So Hard To Test Whether Drivers Are Stoned? NPR 2/9/16

• "If we are going to criminalize DUI marijuana, we need to take information from scientific studies and use it to decide if that risk is sufficiently high to be so morally blameworthy that we call it a crime. But we don't, so picking 5 nanograms per milliliter is arbitrary"

• Andrea Roth, a professor of law at the University of California, Berkeley.

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Science Unclear

• “The science on this issue is clear: it is not possible to identify a valid impairment standard for marijuana or any other drug equivalent to the 0.08 g/dl limit for alcohol.”

• A rationale for Zero Tolerance Laws?

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2015 Study Do Zero Tolerance Laws Decrease Fatalities ?

Maybe • FARS (Fatalities Analysis Reporting System)

• 1990-2010

• Study Examined the relationship between zero tolerance drugged driving laws and traffic fatalities.

• “we cannot rule out the possibility that, as currently implemented, per se laws reduce traffic fatalities”

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http://www.nhtsa.gov/FARS


Journal Drug and Alcohol Dependence

September 1, 2015 Impairment Study

Blood THC concentrations of 8.2 and 13.1 μg/L during driving similar to 0.05 and 0.08 BAC

Evaluated standard deviations of lateral position (SDLP) (lane weave, steering angle, lane departures/min, and maximum lateral acceleration)

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Alcohol + THC 1+1=3

Research shows that impairment increases significantly when marijuana use is combined with alcohol

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MJ & Alcohol Affect Driving Differently

MJ

• Attempted compensation

• Caution in experimental Settings

• Can perform simple tasks but impaired higher level cognitive function

• Inhibitions

• Faster Driving

• Decline in visual & auditory perceptions & processing functions

Alcohol

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MJ & Alcohol Affect Driving the Same

• Control Loss

• Inability to Process Changes

• Divided Attention

• Concentration

• Tracking Lane Position

• Reaction Time

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Drinking/Drugged Driving

• Studies have found that drinking and drugged driving are often linked behaviors

• Marijuana is the most common illicit drug in drugged driving cases (26.9%)

• Stimulants (17.2%)(Cocaine-11.6% and Amphetamines 5.6%)

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People convicted of driving under the

influence of prescription or illegal drugs must have an ignition interlock installed on their vehicles as required by New Mexico’s drunken driving law, although the devices don’t detect the use of drugs, the state Court of Appeals has ruled.

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Court Orders Interlocks Drug-Impaired Drivers

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The Case for DREs

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• 50 States have a DRE Program

• Less than 1% of the country’s police officers are fully trained for sobriety tests for drugged driving

Drug Recognition Evaluator (DRE)

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• When the DREs claimed drugs other than alcohol were present, they were almost always detected in the blood (94%);

• All of the drugs were identified in almost 50% of the subjects;

• 87% of the time the DREs correctly identified at least one drug other than alcohol

NHTSA DRE Accuracy

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A majority of states have either state,

appellate or state Supreme Court cases

that hold that the DRE testimony is

admissible as expert, special knowledge,

layperson.

Three states have a statute that allows for admissibility N.C. Ha. N.Y.

Admissibility DRE Testimony

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THC SFSTs

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Relationship of THC to SFST HGN, OLS, WAT a valid test for THC?

• 1993 NHTSA Manual

• 2004 Psychopharmacology

• 2009 Study

• 2012 Study

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HGN Not Applicable to THC

According to the 1993 NHTSA Manual, HGN can recognize "CNS Depressants", PCP, and "Inhalants". Because they affect the same neural centers as alcohol

It cannot detect CNS Stimulants, Hallucinogens, Narcotic Analgesics, or Cannabis. (Chapter V, Page 1)

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HGN

• Drugs that depress the central nervous system, such as inhalants or phencyclidine that hinder the brain’s ability to properly control the eye muscles.

• “Cannabis does not produce horizontal gaze nystagmus.”

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SFST 2004 Psychopharmacology

• Positive relationship between the dose of THC administered and the number of participants classified as impaired based on the SFSTs.

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2009 Study

• A study that assessed which signs of the Drug Evaluation and Classification evaluations predicted various drug categories (including cannabis) at best showed that

• OLS contributed significantly to the prediction

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Psychopharmacology Study 2012

• “In general, the present data indicate that SFST were mildly sensitive to the effects of THC depending on dose and cannabis use history.”

• Lack of sensitivity might be attributed to tolerance and time of testing.”

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Hot Topics

• Oklahoma & Nebraska v. Colorado

• MJ smell not enough for stop

• MJ Congressional Bills

• SCOTUS case 4th Amendment Refusal for Test as a Crime-

• MJ Roadside Testing & Devices

• Juries Acquitting

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Thank You Judge Mary A. Celeste (ret) [email protected] 303-501-3242

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mailto:[email protected]

Documents

Marijuana & Driving - TMCEC€¦ · Medicinal use of marijuana including the limited use of low-THC / high CBD Follow-up legislation in recreational states and D.C. Recreational legalization