Proving a Vermont Marijuana DUI

Michael was unfamiliar with the rural Vermont road he was traveling on.  On his way to play some football in northern Vermont with a friend, Michael choose to make a pit stop off of exit 5 on the heavily traveled Interstate 91.

According to police affidavits, Michael was pulled over for staying in the passing lane as he approached the onramp to I-91.  The officer who pulled him over, a local sheriff’s deputy, stated that he could smell marijuana coming from the car. Michael admitted to the officer that he was in possession of under an ounce and he handed over the marijuana to the officer.

What could have resulted in a traffic ticket and a fine, turned into a criminal investigation due to the officer suspecting that Michael may be under the influence of marijuana.

Michael was subject to standard alcohol based field sobriety tests, and a roadside breath test, which showed that Michael had no alcohol in his system.

Instead of letting Michael go, the officer arrested him, alleging that he had probable cause to believe that Michael was under the influence of marijuana.  Attempts were made to contact a specially trained Drug Recognition Expert, whose 12 step evaluation is used to issue an opinion on whether a motorist is under the influence of drugs.  No such DRE was available to evaluate Michael on this evening.

Michael was subsequently lodged at the Southern State Correctional Facility, where he was released several hours later after being able to post bail.  Michael’s name and details of his arrest were released to the media and he was issued a citation to appear in court.

Michael hired an attorney and he plead not guilty.  Several months later, the State dismissed all charges against him.

Marijuana and Driving

Michael’s arrest illustrates the significant grey area surrounding marijuana use and its effect on operating a motor vehicle.  State legislators across the country are grappling with marijuana based DUIs as legalization for both medical and recreational use continues to gain momentum.

Currently 29 States have legalized medical marijuana use, while 9 States have enacted laws legalizing recreational use, with three; California, Massachusetts and Vermont enacting legalization that will take effect in 2018.

According to a recent Rand report, which was commissioned by Vermont lawmakers, household surveys found that 12 percent of Vermont’s population ages 12 and older— and nearly 30 percent of those ages 18 to 25—reported using marijuana in the past month.  “We have seen statistically speaking a slight rise in marijuana consumption over the last 15 years,” stated Ben Hansen, an economist with the University of Oregon who has conducted extensive research in the Marijuana market. “Meanwhile, tobacco and alcohol sales have been plummeting during that same time period.”

Proving a Marijuana DUI

The changing legal landscape has placed an urgency on developing reliable investigative criteria for Law Enforcement in order to support an arrest on suspicion of an operator operating under the influence of marijuana.

Vermont Bill H.501, which amended the drugged driving statute in 2013, gave law enforcement significant leeway in making arrest determination. Instead of requiring law enforcement to prove that the operator was “under the influence to a degree that renders the person incapable of driving safely”, lawmakers amended the language to only require that law enforcement prove the operator was “under the influence to the slightest degree”, which is the same standard used to charge individuals of driving under the influence of alcohol.

Lt. John Flannigan, the Drug Evaluation and Classification Coordinator for the State of Vermont, stated that the amendment has given additional power to law enforcement, that allows for the same standard to be used for all substances.  “There is no set criteria for law enforcement to reach a conclusion of impairment,” stated Flannigan, “There is no magic number of clues, in order to make an arrest, an officer must look at the totality of the circumstances”

The totality of the circumstances noted by Flannigan equates to the finding of Probable Cause which is necessary for a citizen to be arrested for suspicion of a committing a criminal offense.  The Vermont Supreme Court in the 2005 case of State v. Goldburg found that  probable cause exists when the affidavit sets forth such information that a judicial officer would reasonably conclude that a crime had been committed …” (internal citations omitted).

Much of the fact finding to support a reasonable conclusion of criminal activity falls on the shoulders of the 52 Drug Recognition Experts located within Vermont, commonly referred to as DREs. “We want to make sure that we provide specialized service to every corner of the State,” stated Lieutenant Flannigan. “We still have areas of need in the state and we are looking to fill those holes.”

Flannigan has acknowledged the evidentiary hurdles law enforcement face when investigating drugged driving cases as many of these cases hinge not only on the DRE opinion but also the results of blood tests, which can be taken several hours after a traffic stop, and analyzed several weeks after the arrest.  “It is very difficult and inefficient to get a timely sample of blood for a drugged driving case,” stated Flannigan. “We are looking at other bodily fluids that are less invasive such as the saliva test, which a lot of states appear to be moving towards.”

State legislators have begun to take steps to incorporate a roadside saliva test into Marijuana based DUIs.  The bill just recently was passed by the House of Representatives.

Although the Bill is meant to address some of the concerns associated with blood tests, the 2017 National Highway Transit Safety Association (NHTSA) report to Congress on Marijuana based DUIs has found “that saliva does not appear to an an accurate and reliable predictor of impairment from THC.”  

Flannigan argues however that these tests are merely used to confirm drug use, which taken with the other observations of a DRE are useful in establishing a case for drugged driving.

“Blood and saliva tests are excellent at identifying the drug that is causing impairment, but there is not a correlation between blood or saliva concentration and drug impairment”, stated Dr. Marilyn Huestis, former Chief of Chemistry and Drug Metabolism at the National Institute of Drug Abuse Intramural Research Program. Her research documented that small amounts of THC can be detected in chronic frequent cannabis users up to 30 days after last use. “There is no blood THC cutoff concentration that documents marijuana impairment in occasional and frequent cannabis users”, “For the occasional user, THC is out of the blood in 6-8 hours, but with the frequent user, THC can be stored for longer periods of time in fat tissue.  Having THC in the blood in the occasional user means recent use, but in the chronic user, it may not represent recent cannabis use. For this reason, I feel it is important to document impairment by a trained police officer or other witness, and then test a biological fluid (either blood or preferably oral fluid or saliva, to indicate which drug is producing the impairment.”

Marijuana and Crash Risk

The 2017 NHTSA report found that there are contradictions in the science based studies that have evaluated marijuana use and the risk it may impose on being involved in a motor vehicle crash.  Some scientific reports have found “minimal or no effect on the likelihood of crash involvement, while others have estimated a doubling in the risk of crash involvement.”

Hansen has stated that these conflicting findings may be due to the reduced risk taking behavior that those under the influence of marijuana partake in when operating a motor vehicle.  “There is limited evidence on the crash risk of marijuana influenced individuals,” stated Hansen. “What has been found is that there is a difference in risk adversity, where with alcohol you see an increase and in marijuana you see a reduction.”

Due to the limited scientific evidence, NHTSA has acknowledged that there is no set standard for marijuana impaired driving and thus, the onus for arrests falls solely on the shoulders of law enforcement.  “In 1908 the Model T was released, in 1910 we had our first drunk driving studies, the first quantification of DUI a level was in 1927 and the first drunk meters were constructed in 1938,” stated Hansen. “However, with marijuana DUIs, we are currently stuck in the 1920s scientifically.”

 

5 takeaways from NHTSA report to Congress on marijuana impairment

The National Highway Transit Safety Association (NHTSA) recently released a report to Congress outlining the research they currently have on Marijuana use and its effect on driving.  In sum, the report found that the effects marijuana have on driver’s ability to operate safely is unsettled. In fact, there is some research out there that shows that those impaired may in fact operate their vehicle in a more careful manner then when sober or under the influence of alcohol.  Here are five takeaways from this report.

1) THC levels found in blood do not equate to a level of impairment:   One of the major tools used by law enforcement is the blood draw.  This can provide concrete proof that a motorist has used marijuana in the past.  However, it is stated several times over in the report, that the science does not support a level of impairment based on the THC level alone.  In fact, low levels of THC can be found in the blood for up to 30 days after use, which makes it difficult to equate a THC level with a level of impairment.

2) Some tests have shown that those under the influence of marijuana drive more carefully then those who are sober.  An interesting study was  released in 2015 that marijuana may in fact mitigate risky driving by those under the influence of alcohol.  It further found that those under the influence of marijuana tended to drive slower and at farther distances from a vehicle in front of them.

3) Specific cues of marijuana impairment are not available to detect impairment with reasonable certainty:  NHTSA has admitted that unlike with alcohol, law enforcement cannot point to a series of standardized evidentiary cues that can per-se, lead them to a conclusion marijuana impairment.

4) Marijuana’s role in causing crashes is “less clear”:  NHTSA has admitted in their report that it is difficult to correlate the cause of crashes due to marijuana impairment.  The hurdles to show that marijuana impairment does in fact increase the risk of a crash are the same in which NHTSA acknowledged with regards to THC levels in the blood (i.e. they do not equate to a level of impairment).  Further, the presence of THC in the blood for 30 days, skews any data they may have that states that marijuana impairment was in fact the cause of the CRASH.

5) Impairment Curve of Marijuana is sudden:  With alcohol, there has long been established a BAC curve, that shows how alcohol is processed.  Customarily, a peak BAC is reached 20 minutes after the last drink has been consumed.  With marijuana, it is much more difficult to calculate.  According to NHTSA, peak impairment occurs immediately after smoking and drops significantly thereafter.  This curve is heavily dependent on the user, as those who are regular consumers may show far less signs of impairment even after consuming large doses then those who use less consistently.

The overall takeaways from this Marijuana report, is that much is still to be learned about the effects of Marijuana and driving.  Despite this significant gap in knowledge however, one thing was made crystal clear by NHTSA’s report.  They want to see more Drug Recognition Experts trained and on Vermont roads.  This, with the impending legalization bill, will likely result in an increase in Vermont DUI-Marijuana arrests, despite the evidence that supports these arrests remaining unsettled.