Marijuana Legalization Is The Time To Bring Science To DUI Enforcement

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Marijuana Legalization Is The Time To Bring Science To DUI Enforcement

The Full Text of this Note first appeared in the SIU Law Journal, and can be found here.

On November 3, 2020 four states added themselves to the list of states that have repealed their prohibitions against the adult recreational use of marijuana.  As this list grows, so also grows the need to find ways to deal with adults who use marijuana irresponsibly, especially when driving.  This requires new levels of skill from the police and courts which will have to deal with drivers who are impaired as a result of using marijuana.  In many states, police and prosecutors rely on testimony from “Drug Recognition Expert” (DRE) police officers to identify marijuana impaired drivers.  There is no scientific validity to the DRE procedure and no one should be convicted of a DUI offense on the basis of a DRE police officer’s testimony.  The growing legalization of adult recreational use of marijuana should be accompanied by a search for a science-based means for identifying marijuana impaired drivers.  This would protect both marijuana users from unjust convictions, and protect the emerging legal marijuana industry from vicarious liability based on actions of their customers.

DRE police officers follow a 12-step “protocol” that they claim allows them to identify drug impairment.  Attempts to validate the DRE protocol as a means of identifying impairment have failed miserably, especially when the drug in question is marijuana.  The DRE protocol calls for the DRE officer to make roadside or police station diagnosis of various medical, or psychiatric conditions. These include a diagnosis of the “possible paranoia” that DRE’s say is characteristic of marijuana use, even though police officers are not trained to make psychiatric diagnoses.  Not even a psychiatrist would want to diagnose paranoia in a few minutes at the roadside or a police station.  DRE officers also take the subject’s pulse three times, and are even trained that they can do so by placing their hands on the subject’s throat to obtain a carotid pulse.  DRE police officers claim that an elevated pulse indicates marijuana intoxication, but does anyone seriously think that a person’s pulse rate won’t jump when a police officer takes that pulse three times at the roadside or police station, possibly with his hand on the person’s throat?  According to DRE police officers, elevated blood pressure is another indicator of marijuana use and impairment, but about half of all Americans suffer from high blood pressure and even perfectly sober persons who don’t suffer from high blood pressure will surely see their blood pressure jump during a roadside police stop or when they are taken to a police station.

Another indicator of marijuana impairment that DRE officers use is “increased appetite.”  Yes, the stereotype of potheads having the munchies is part of the basis for DRE police officers’ supposedly expert opinions concerning a defendant’s marijuana impairment.  How this is evaluated at the roadside or police station is unclear, but if a DRE officer slyly offers some Doritos to a person accused of impairment they should probably say: “No, thanks.”  

These components of the DRE procedure may sound bizarre or even funny.  But all of them (and more) can be found in the written materials used in the DRE training program.

It isn’t surprising that the DRE procedure has not stood up to scientific scrutiny.  DRE officers sometimes point to studies that were financed and conducted for the purpose of proving the validity of their training as a means of detecting marijuana impairment, but most of these studies concede that they were unable to show that DRE officers could correctly identify impaired drivers.  Courts in Rhode Island and Maryland forbid DRE police officers to testify as experts.  The Minnesota Supreme Court has concluded that the DRE procedure “dresses up in scientific garb that which is not particularly scientific.”  The New Jersey Supreme Court has before it the case of State v. Olenowski, where the admissibility of DRE police officers’ expert opinions will be decided.  New Jersey and other states should reject this unreliable, pseudo-scientific testimony.

Rejection of DRE officer testimony is only the first step in finding a practical, and scientifically valid way to enforce DUI laws in the era of legalized marijuana.  Blood THC level has been proposed as a marker for impairment, analogous to blood alcohol levels.  Unfortunately, blood THC level has proven to be a failure as an indicator of impairment.  The American Automobile Association, the National Highway Traffic Safety Administration, and many others have conducted extensive studies and concluded that blood THC cannot be correlated with impairment.  Other biochemical indicators of marijuana use remain positive for days after the subject has used marijuana, making them useless as indicators of impairment.  This does not mean that science cannot find a valid biochemical indicator of marijuana impairment, only that the leadership and funding to do so has been lacking.  

In almost every state where the medical or recreational use of marijuana has been legalized, a portion of the tax revenue from sales of marijuana are directed to a fund that is used to defray the administrative costs of marijuana use and the war on drugs.  These costs include the licensing bureaucracy, drug abuse prevention programs, social justice programs, and law enforcement (including DRE police officers).  A portion of these tax funds, perhaps 5%, should be directed toward research to find a valid and practical biochemical marker for marijuana impairment. 

The importance of the just enforcement of DUI laws is clear and should be reason enough for the marijuana industry to support the allocation of funds to the development of a valid and practical biochemical marker for marijuana impairment.  But if a public spirited sense of justice isn’t reason enough to persuade the industry to support this effort, then there is another compelling reason.  With the use of marijuana in most public areas largely illegal, there is an emerging although certainly not universal regulatory framework that allows businesses to provide locations for social consumption of marijuana in specified locations.  These businesses, often associated with licensed marijuana retail establishments, are expected to increase legal sales of marijuana and to be profit centers in themselves.  If they and their users become targets for a pseudoscience-based enforcement of DUI laws, they will be snuffed out before they can take root and the entire industry will suffer.  

Another concern for the public use industry is the risk of Dram Shop liability.  When a customer leaves a public use establishment, or even an ordinary dispensary/retail establishment, and is then involved in a serious accident where persons or property are harmed, a pseudoscience-based determination that the customer’s marijuana-based impairment was the cause can trigger devastating liability.

Thus, in addition to the compelling arguments based on the promotion of justice, it is in the legal cannabis industry’s self interest to promote research to find a valid and practical biochemical marker for marijuana impairment so that DUI laws can be fairly enforced.