NEW: Are you driving stoned? Marijuana DUI tests a challenge for police

By Eliot Kleinberg

Illustration by Mark Buzek / The Palm Beach Post

 

One seasonably cool day, Boca Raton stockbroker Irvin Rosenfeld sat at a red light in Broward County, his window down, and smoked a joint. In the next lane: an undercover cop.

“I said, ‘Officer, I’m using cannabis sativa provided to me by prescription,’ ” Rosenfeld recalled. “He said, ‘Smells like marijuana to me.’ ”

Rosenfeld is nationally known as one of several people with medical conditions who for decades have been supplied marijuana by the federal government. He said it’s never made him high, even when, as a teen, he smoked it illegally.

“I said, ‘Officer, do I look intoxicated?’ ” Rosenfeld said in June. He said the officer decided no.
As more and more states legalize marijuana, both for medical and recreational use, law enforcement increasingly is dealing with people who might be driving stoned. This year, the Florida Highway Patrol began a “Drive Baked, Get Busted” campaign.

But unlike for alcohol, there’s no standard impairment threshold for pot in a breath, blood, urine or saliva test. That leaves the officer — and, potentially, a jury — just two tools: personal observances and a field test.

Alcohol by far is the leading drug in cases of impaired driving, blamed for nearly a third of all traffic deaths, according to Mothers Against Drunk Driving.

But in 2016, drivers in Florida who were impaired by drugs caused 934 crashes, killing 440 people, including themselves, their passengers and others, according to the Florida Department of Highway Safety and Motor Vehicles.

The figures don’t break down by type of drug: pot, pills, heroin or something else.

The National Organization for the Reform of Marijuana Laws disputes that pot is the primary culprit.

“Neither the enactment of state-specific medical cannabis access laws nor the enactment of adult-use regulation has been independently associated with upticks in overall traffic crashes or motor vehicle fatalities,” NORML Deputy Director Paul Armentano said, citing various studies. Some, he said, even suggest that fatal crashes go down because perhaps more people are smoking a joint instead of knocking back several drinks.

 

“This is not to imply that ingesting cannabis is not associated with potential changes in behavioral and/or psycho-motor performance,” Armentano said in an email. “This is why NORML maintains a ‘no driving’ policy in our Principles of Responsible Use.”

He said the group advocates better ways to spot pot-impaired drivers, such as greater use of drug recogniction expert officers, as wel as field tests and the use of technology such as saliva or breath tests.

Candy Lightner — who founded MADD and who now is president of “We Save Lives,” also a DUI awareness and advocacy group — disagrees about totals.

 

She points to a June 2017 study by the Highway Loss Data Institute, part of the Insurance Institute for Highway Safety. It concluded crashes involving insurance claims were up 3 percent in Colorado, Oregon and Washington, states where recreational marijuana use is legal.

Lightner’s group created its own campaign, “Driving High Means DUI.”
 
‘Just smoking it is not enough’
Everyone agrees all impaired drivers need to be off the road, said Raymer Maguire, campaign manager for criminal justice reform at American Civil Liberties Union of Florida. He also worked, separately from the ACLU, on Florida’s 2014 and 2016 medical marijuana legalization campaigns.

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Whether a Floridian is impaired from marijuana or another substance “or for not sleeping in the last 36 hours,” he said, “impaired is impaired.”

What Maguire finds “worrying,” he said in June from Coral Gables, is that, “is my swerving over the yellow line once justification? Or going 5 or 10 miles over the speed limit? If there is no smell, nothing to suggest that there is marijuana involved, at what point are officers making the decision to test?”

Many indications of pot-impaired driving “can be blamed on other things too,” said Ted Hollander, a West Palm Beach lawyer at The Ticket Clinic, which specializes in defending motorists. He said his resume includes convictions and plea deals, but he’s also won cases, and has many times gotten prosecutors to drop charges, arguing there’s just not enough evidence for a conviction.

“Just smoking it is not enough,” Hollander said. “They have to prove that you’re impaired.”

With alcohol, the 0.08 blood alcohol level, the point at which a person is considered legally impaired, is settled law, and “it took a long time to get to .08,” Mothers Against Drunk Driving’s J.T. Griffin, the group’s chief legislative lobbyist, said from Washington, D.C.

  

With alcohol, “law enforcement can have you blow into a Breathalyzer. Case closed,” Griffin said.

“We don’t have that with drugs. We rely on law enforcement to go to court.”

Many states do conduct physical tests for pot, and some have set a standard of 1 to 5 nanograms of tetrahydrocannabinol (THC), pot’s active ingredient and the part that causes impairment. Florida’s not one of them.

In states that test, the test alone could convict a driver, said Erin Holmes, director of traffic safety for the Foundation for Advancing Alcohol Responsibility, a group founded by the alcohol industry to battle drunk driving and underage or irresponsible drinking.

But, Holmes said, “we don’t have a convergence of scientific evidence like we do for alcohol.”

Because of that, “we’re never going to get there,” Miami attorney Stephen Talpins said. He’s worked extensively in the field and was involved in the 1994 Miami court case that established the admissibility in court of a “drug-recognition expert.”

Instead, Talpins said, courts must decide on “the totality of the circumstances.”
 
‘The issue is very complicated’
The level of THC at which an individual is impaired and the level that can get you arrested aren’t necessarily the same thing, and “that’s been what’s difficult,” said Ron Flegel, director of workplace programs for the Substance Abuse and Mental Health Services Administration, part of the U.S. Department of Health and Human Services.

 

He did say that, unlike alcohol, pot can take as much as four hours to reach its top level of impairment, so people might be leaving a party at their most stoned, He recommended someone who’s smoked marijuana not drive for 12 hours.

Even MADD’s Griffin concedes that “the issue is very complicated. And it really has to do with where impairment begins.”

Stoned driving creates “some real interesting legal issues,” said Wayne Logan, a professor at Florida State University’s school of law. One of the more fascinating: If marijuana is found in your blood, are you in criminal possession of marijuana?

 

Bill Lax/Bill Lax/FSU Photo Lab

Photos for FS Times and College of Law. Wayne Logan. 

 

Logan cites a 2013 Michigan case in which that state’s supreme court banned prosecution of people who just had it in their system, so long as they’re not driving impaired.

“There’s an old phrase,” Logan said, “that states are labs of experimentation. That’s kind of what’s happening right now.”
 
For what clues do cops watch? 
Unless there’s a fear of a medical condition, officers can’t pull over a person unless they see a violation of the law, or at least traffic rules.

They might see a motorist going well above, or dramatically below, the speed limit. Swerving in out of lanes. Driving too closer to others. Making sudden accelerations or stops.

“Maybe their left-turn blinker’s on but they’re turning right,” Joseph Loffredo, who’s qualified as a “drug recognition expert,” told The Palm Beach Post.

Once the person’s been stopped, the officer — who still doesn’t know what substance might be in play — looks for clues. Those that indicate pot: glassy or bloodshot eyes. Dilated pupils. Swaying or twitching. Slurred speech. Inconsistent statements. A marijuana odor. The presence of a pot pipe or other paraphernalia, or even an unfinished “roach.”

“If we ask them for their driver license and registration and they hand us their Visa and MasterCard, that’s another clue,” Loffredo said. And, he said, cars now are equipped with multiple cameras.

The officer then orders a series of physical tests: following a finger with the eyes. Walking heel-to-toe and turning. Lifting a leg and counting aloud. Tilting the head up and counting internally to 30 second (impairment will throw off the sense of timing.) And often, but not always, the iconic fingertip to the nose.

The lifted leg test can be a “gotcha” because the trooper instructs the motorist decide which leg; a sober driver’s less likely to hesitate in selecting.

In the end, Loffredo said, the officer makes a judgment call that the driver’s impaired; “it’s not to determine impairment by what.”

In Florida, refusing a blood, urine, saliva or breath test for impairment gets you an automatic one-year suspended license. It’s 18 months if it’s your second time. A driver also can refuse a field test. In court, either a jury or a judge can consider the refusal as evidence.

In the absence of any of those tests, the Florida Highway Patrol said, a trooper would have to make a judgment that the driver is impaired in order to make an arrest.

 

Rosenfeld, the Boca Raton stockbroker who’s taken federally supplied marijuana since 1982 for his more than 200 painful bone tumors, said he’s never had to take a field test but he’d have no problem doing so.

“The biggest problem is the lack of testing we do in this country for drugs, especially marijuana now that it becoming so accessible,” said Lightner, the MADD founder. “Until we change that policy, it will be impossible to determine how serious the DUID (driving under the influence of drugs) problem is and develop effective solutions.”

 
DRIVING HIGH IN FLORIDA
Driving while impaired by drugs is illegal and subject to the same penalties as driving while impaired by alcohol. Penalties can include expensive fines, license revocation and jail time. Drivers under the influence of marijuana can experience a slowed reaction time, limited short-term memory functions, decreased hand-eye coordination, weakened concentration; and difficulty perceiving time and distance. Unlike alcohol, there is no specific impairment limit with marijuana. Marijuana affects everyone differently and can remain in a person’s system much longer than alcohol.

Source: Florida Highway Patrol