Testing a driver for alcohol impairment is relatively easy.
Decades
of research show drunken driving equals bad driving. Standardized tests
mark various levels of impairment. And because alcohol passes through
the system quickly, detecting its presence indicates recent use.
But determining whether someone is too high to drive is a lot more complicated.
Despite
marijuana’s growing acceptance nationwide and its legality for
recreational use in California, there is no consensus on how THC, its
psychoactive ingredient, affects drivers or what levels constitute
driving under the influence. That has left lawmakers, police and users
grappling with a critical question: If you’re using marijuana, when is
it safe to get behind the wheel?
An
Oakland company believes it’s solved one piece of that puzzle. By
mid-2020, Hound Laboratories plans to begin selling what it says is the
world’s first dual alcohol-marijuana breath analyzer, which founder Dr.
Mike Lynn says can test whether a user has ingested THC of any kind in
the past two to three hours.
“We’re
allowed to have this in our bodies,” Lynn said of marijuana, which
became legal to use recreationally in California in 2018.
“But the tools
to differentiate somebody who’s impaired from somebody who’s not don’t
exist.”
Law
enforcement agencies already are testing the breath analyzers and
competing roadside devices like oral swab tests. But experts say there’s
a long way to go before any of the emerging technology can or should be
used as evidence in a courtroom.
“Use
of marijuana is not the same as impairment by marijuana,” said Dale
Gieringer, director of California National Organization for the Reform
of Marijuana Laws.
Unlike
alcohol, marijuana doesn’t affect the body or brain in a uniform way,
Gieringer said. Regarding the breath analyzer, Gieringer said he’d want
to see research on its sensitivity to medical marijuana users, who take a
certain amount every day to function.
“We would like to see better data before these are arbitrarily deployed,” he said.
Research
on cannabis-impaired crashes is in its infancy. Because accidents often
involve alcohol in addition to marijuana or other substances, it’s
difficult to assign blame to just one.
The
California Highway Patrol recently started tracking drug categories
involved in collisions. In 2018 CHP investigated 537 traffic crashes in
which officers suspected cannabis involvement, and 539 in 2019. The
figures don’t distinguish between crashes where the suspect was solely
using cannabis and the ones that involved cannabis and other substances.
Lynn,
an emergency room doctor at Highland Hospital and reserve deputy for
the Alameda County Sheriff’s Office, spoke to The Chronicle recently
from Hound’s Uptown Oakland office about his 6-year-old company and the
role he envisions for it.
Lynn
stressed that his mission is one of fairness. He says he has a more
equitable approach for both police and employers than to test with blood
and urine, where chemical compounds found in cannabis known as
cannabinoids are detectable long after a person is high.
“The
challenge I knew from a law-enforcement standpoint is that ... all that
kind of testing that is available is totally unable to differentiate
between someone who used five days ago — and is clearly not impaired —
versus somebody who used an hour ago,” he said.
Unlike
an alcohol Breathalyzer, Hound Lab’s weed technology doesn’t detect
impairment levels with a numerical value. It’s a simple yes or no answer
for ingestion in a narrow window of time.
Lynn
said it’s up to lawmakers to determine the legal limit of impairment.
His company, he says, provides the tools and research to allow others to
start to determine what that threshold will be.
“We’ll
say ‘it’s in your breath (or) it’s not in your breath,’” he said. “And
then the expectation is that, whether it’s law enforcement or employers,
they will use that objective data and follow it up with other testing.”
Independent researchers with UCSF have supported the lab’s initial claims.
In
a recent study, 20 people were asked to bring in their own marijuana
and to smoke the equivalent of one joint. Researchers did baseline and
follow-up captures with the breath analyzer and compared the results
against those on advanced blood testing equipment.
The
study found that the devices were able to detect THC three hours after
it was smoked — which the National Highway Traffic Safety Administration
says is the window of peak impairment — and that THC in the breath correlated with the blood tests.
“Both
of those are suggesting that THC measurements in breath could be used
at the roadside,” lead researcher Kara Lynch said.
“But more studies
need to be done to determine what level of THC in breath would actually
correspond to impairment.”
Hound
Labs has already been field testing its device on the roads with the
Alameda County Sheriff’s Office and a handful of other agencies, and
testing on people pulled over on a voluntary basis.
Sgt.
Ray Kelly, a spokesman for the department, said it hasn’t been
difficult to get people to participate. Kelly said deputies have run the
breath analyzers on about 12 participants, both drivers and passengers,
and that the test has no bearing on any potential criminal case.
Driving
under the influence of any substance is illegal in California and
nationwide. While some states have “per se” laws that set a legal limit
of THC in the system and prohibit driving above it, California isn’t one
of them.
Critics say such laws are unjust, since blood tests can detect THC long after someone’s impaired.
On
California roadsides, officers who suspect a driver is high will
typically use cognitive tests and check for physical signs of
impairment, but results can be subjective.
Kelly
said Hound Lab’s breath analyzer, as well as other products emerging on
the market, will be one of many tools to test for impairment. The
California Highway Patrol will soon begin a pilot project in the
Bakersfield area to field test oral fluid screening devices that detect
the presence of a number of substances.
“As
a result of (marijuana) legalization, a very competitive market has
started,” Kelly said. “Basically, the best product that’s developed will
likely win.”
Alameda
County Public Defender Brendon Woods said the devices would need strong
support from the scientific community before they can be introduced in
court, and he said he’s concerned about police conducting tests for
something that’s not a crime.
“So that’s the big issue,” he said. “Driving right now, having smoked marijuana, is not illegal. Driving impaired is illegal.”
Woods
said he was also concerned about how it could be used as a pretext to
stop, detain and search African Americans and Hispanics.
He added that
even alcohol breath analyzers have been found unreliable.
“It’s very hard to obey a law that you need a Ph.D. in psychopharmacology to understand,” he said of marijuana impairment. “I think we’re a long way from being able to do anything meaningful in this domain.”
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