Rolling down the street smokin indo, gettin a D. U. I…. laid back (with my mind on my lawyer, and my lawyer on my mind)... Snoop D.O.DBLFREEME
Despite marijuana’s growing popularity across the nation and relative decriminalization in Illinois, getting high and driving is, and has been for decades, illegal. Until very recently, though, there was no .08 equivalence for marijuana/drugs. In fact, it was .0ANYAMOUNT = DUI. This is what is legally referred to as a zero tolerance, or per se, DUI drugs law.
With zero tolerance laws, if you smoked marijuana days or weeks prior to your DUI arrest and blood/urine test, you’re guilty of DUI despite not being under the influence of the drug at the time you drove. What if someone was killed when you were driving and drugs are in your system? If your driving was the proximate cause of the accident, you’re guilty of DUI-death. Whether or not you were actually impaired does not matter. This criminalizes (*harshly) people who were not necessarily intoxicated or impaired by drugs/cannabis, but tragically caused a fatal car accident. The simple presence of drugs/cannabis in one’s system turns a typically civil matter into a criminal defense proceeding with a high likelihood of incarceration. Despite being called Driving under the Influence, being “under the influence” isn’t required with zero tolerance laws. Makes sense right?
To partially address this legal discrepancy, Illinois turned to the classic method: blood/breath/urine level thresholds to determine impairment. For marijuana, the zero tolerance/per se law was thrown out and a .08-like level created for THC. Currently, you are DUI-cannabis if within 2 hours of driving you have:
● 5 or more nanograms/milliliter of whole blood; or ● 10 or more nanograms/milliliter of other bodily substance.
Anything is an improvement from our previous zero tolerance marijuana DUI laws. Problem is, the passage of these new per se legal thresholds for DUI cannabis contradicts the science on marijuana impaired driving. In fact, the current science finds no correlation between THC levels in blood or urine and driving impairment.
The National Highway Traffic & Safety Association (NHTSA) is the national authority on DUI detection. Over the years, NHSTA developed the nationally standardized DUI field sobriety tests, helped enact a .08 BAC level in every state, as well as continuing to research the issues and impact of DUIs in the USA. In a July 2017 report to Congress, NHTSA out right rejected per se cannabis thresholds, stating:
“A number of States have set a THC limit in their laws indicating that if a suspect’s THC concentration is above that level (typically 5 ng/ml of blood), then the suspect is considered to be impaired. This per se limit appears to have been based on something other than scientific evidence. Some recent studies demonstrate that such per se limits are not evidence-based.” (emphasis added).
However, this conclusion is strongly based in science, namely the scientific differences between marijuana and alcohol. A BAC for THC will not work for a basic biological reason: How the human body absorbs, distributes, and eliminates THC.
Alcohol is absorbed and eliminated at a relatively steady rate. Peak blood alcohol concentration is generally reached around 20 minutes after you stop drinking. For an average person, your BAC drops at a rate of .015/hour. This steady rate of elimination gave a mechanism to determine the correlation between BAC level and effects on behavior, judgement, cognition, and motor skills. Based on established science, legislators crafted the modern day .08 DUI laws.
THC levels, on the other hand, provide no such guidance for determining impairment. THC is fat soluble, whereas alcohol is water soluble. This means that THC is stored in the fatty tissues of the body. Due to this, THC can appear in blood sometimes up to a month after ingestion. According to NHTSA, impairment from marijuana lasts up to 2-3 hours. THC levels are at their highest immediately after smoking, then decline rapidly, followed by a slower decline. Within 30 minutes of smoking, the peak THC levels in blood drop 80-90%. NHTSA’s study concluded that:
“Peak impairment does not occur when THC concentration in the blood is at or near peak levels. Peak THC level can occur when low impairment is measured, and high impairment can be measured when THC level is low.”
The fluctuating rates of THC levels in our body from the time we ingest THC until it is completely eliminated makes the alcohol BAC model incompatible. Unless officers give the test within a ½ hour to an hour of smoking, the result is likely to be low levels of THC. In chronic users, low levels of THC will be present regardless of any recent ingestion. This again means that individuals who are not impaired at the time of testing could fail the test.
Applying the traditional alcohol detection methods for cannabis won’t work. “In contrast to the situation with alcohol, someone can show little or no impairment at a THC level at which someone else may show a greater degree of impairment.”
At least according to our nation’s leading authority on impaired driving, the conclusion is clear:
“THC level in blood (or oral fluid) does not appear to be an accurate and reliable predictor of impairment from THC.”
Part 2 of this article will be available in a few days. Call Chicago Criminal Defense Attorney Robert J Callahan for help with your DUI.