Pot legalization doesn’t apply to roads
By Cari Hachmann/ The Portland Observer
With legalization of marijuana underway in Washington, the state has adopted a new legal standard for driving under the drug’s influence, but police say the protocol for checking impaired drivers goes unchanged. If you’re visibly high, you will be charged with a DUI.
Trooper William Finn, spokesman for the Washington State Patrol, said whether its marijuana, other drugs or alcohol, their main focus is “getting impaired drivers off the road.”
As of last month, 21-and-over Washingtonians are allowed to possess an ounce or less of marijuana. But when it comes to driving, there’s a new technical threshold of five nanograms of marijuana’s psychoactive component or THC, per milliliter of blood, as Washington’s limit for driving under the influence of cannabis.
If a police officer in Washington suspects a driver is impaired when they pull them over, they can arrest and charge that person with a DUI, regardless of any blood being drawn.
Later, police can offer a blood test and the results can be used in court. But even if the person has less than five nanograms per milliliter of THC in their blood, the court can move forward with the prosecution, Finn said.
Some critics argue that the new THC threshold is unconstitutional because marijuana users have no way of knowing when they’re over the limit. Advocates for marijuana legalization say that for the heaviest users of the drug, active THC levels may never drop below five nanograms, even when they’re not impaired.
But others, including police in Oregon and Washington, maintain that driving under the influence of marijuana remains as illegal as it was before the new law.
“Nothing has changed in regards to driving impaired,” said Joshua Ladd, a certified Drug Recognition Expert for the Portland Police Bureau’s traffic division.
In both states, a DUII for alcohol is determined when a driver’s Blood Alcohol Content (BAC) is .08 or more, but the threshold for marijuana is less clear. The Portland Police Bureau says the threshold for a driver intoxicated on drugs is “impaired to a perceptible degree”.
If an officer can’t see it or smell it, but has probable cause that a person is driving impaired, they will ask that person to step out of the car and perform the standard field sobriety test. A few distinguishing factors can help police determine if a person is high on marijuana, said Ladd.
Police check the eyes first: dilated pupils, bloodshot eyes, delayed and slow responses, loss of social boundaries (don’t laugh) and body and eyelid tremors are a few noticeable clues, he said.
Visine may help red eyes, said Ladd, but it does not change the size of the pupil, which is often dilated if a person is high. Police may also check the bottom, inner eyelids for a specific type of reddened look, another indicator of marijuana use.
Police will then ask the person to walk a straight line and do a one-legged stand. Depending on whether the person passes or fails the sobriety test and their initial probably cause, police can make an arrest. Ladd says, asking the person to take a breath test is next in protocol.
The “intoxilyzer” is the first step of the 12-step Drug Recognition Evaluator program, an internationally program that only a select few of Portland officers are certified to give to determine how impaired a person is by a controlled substance.
Certified officers like Ladd can give the evaluation anywhere like the precinct or jail. If a person blows .00, the officer can rule out alcohol as the problem and look for other signs of drug use by continuing the rest of the 11 steps.
“The process we use to evaluate is not to pinpoint the drugs a person is on,” said Ladd, “It’s to eliminate the possibility of drugs they might be on.”
The last step is a urine analysis, which in Oregon, is the preferred method because it is more affordable and less intrusive than a blood analysis. Only DRE certified officers can ask a person for a urine sample.
Police can only draw blood by issuing a warrant through a judge. Blood samples are typically only taken in high-profile cases like a fatal crash.
If THC toxicity surfaces in a person’s urine or blood, police can confirm their suspicions as to whether or not the person was under the influence of a controlled substance, said Ladd.
Police in both states still have the right to make an arrest that leads to conviction based on their testimony as to whether or not the person was impaired at the time they were pulled over. Blood and urine results are either confirmation or data.
“If a person is impaired, it doesn’t matter if it’s medicinal marijuana or bought off the street, crack or cocaine. Impairment is impairment and it doesn’t change,” Ladd said.